New South Wales Court of Criminal Appeal CITATION : Regina v Bond [2000] NSWCCA 518 revised - 14/12/2000 FILE NUMBER(S) : CCA 60614/99 HEARING DATE(S) : 17 August 2000 JUDGMENT DATE : 8 December 2000 PARTIES : Regina v Raymond Arnold Bond JUDGMENT OF : Stein JA at 1; Smart AJ at 2; Ireland AJ at 79 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0110 LOWER COURT JUDICIAL English DCJ OFFICER : COUNSEL : (A) W Terracini SC & G A Newton (R) L M B Lampratti SOLICITORS : (A) W H Parsons & Associates (R) S E O'Connor CATCHWORDS : Criminal Law - Further evidence bearing upon credibility of complainant and prosecution - reasonable possibility it could affect verdict - matter left to jury on incorrect bases. Lewis-Hamilton (1997) 92 A Crim R 532 CASES CITED: CPK (NSW CCA unrep., 21 June 1995) K (1991) 161 LSJS (SA CCA) DECISION : Appeal allowed; convictions and sentences quashed. New trial ordered. IN THE COURT OF CRIMINAL APPEAL 60614/1999 STEIN JA SMART AJ IRELAND AJ - Friday 8 December 2000 REGINA v RAYMOND ARNOLD BOND JUDGMENT 1 STEIN JA: I agree with the conclusion of Smart AJ that there was a reasonable possibility that if the jury had been aware of the victim's compensation claim and the credibility issues concerning Mr Eric Whitfield, their verdict could have been different. I share the reasons which led his Honour to that conclusion. Accordingly, I agree with the orders proposed by Smart AJ, regrettable as that course is. 2 SMART AJ: Raymond Arnold Bond appeals against his conviction on eight counts of being a father, unlawfully and carnally knowing his daughter when above the age of 10 years and under the age of 17 years. These offences are covered by s 73 of the Crimes Act 1900 and carry a maximum penalty of penal servitude for 14 years. The offences allegedly took place between 1 January 1973 and 1 March 1979 and when the daughter was aged 11, 12, 14-15 and 15. The appellant also seeks leave to appeal against the severity of the sentences imposed upon him. On counts 4, 6, 7, 8 and 9 he was sentenced to a minimum term of 5 years 3 months penal servitude and an additional term of 1 year 9 months and on counts 2, 3 and 5 to a minimum term of 3 years 9 months penal servitude and an additional term of 1 year 3 months. All sentences were to commence on 20 August 1999. The appellant was acquitted of count 1 which alleged that between 1 January and 25 October 1971 he carnally knew his daughter, a girl then being under the age of 10 years, to wit, the age of 8 years. 3 The appellant denied that any of the acts of intercourse alleged took place. He challenged his convictions on numerous grounds, including erroneous and inadequate directions, omitting to give the jury necessary directions, inconsistent verdicts, unreasonable verdicts not sufficiently supported by the evidence and fresh or new evidence involving the Crown not providing material to the accused. Those conducting the prosecution were not aware of it. The Crown Case 4 The complainant was born on 25 October 1962. She was the eldest of four children. The second was Brian, the third was Eric and the fourth was Kylie. The complainant gave evidence of sexual acts by the appellant which were the subject of the various counts and others which were not. The effect of her evidence was that the appellant had been sexually active with her over many years. When she was 5 years old and living at Punchbowl there was an incident in the garage in which the appellant touched her on the vagina. 5 Between 1 January 1971 and 25 October 1971 when the complainant was aged 8 years the appellant was alleged to have collected her from her Auntie Kitty's house and taken her to their home which the complainant said was at Hastings River Drive Port Macquarie. The appellant wanted her to clean the house. When they were there the appellant sat her on the side of the bed, took her pants off and had intercourse with her. She told him not to do it as it was hurting her. She was crying. The appellant denied the allegation and gave evidence that in 1971 the family lived at Grandview Parade and did not move to Hastings River Drive until mid 1972 by which time the complainant would have been ten. For obvious reasons the appellant was acquitted of this charge (count 1). 6 When she was aged 11 the family was living at St Marys. On one occasion allegedly between 1 January 1973 and 31 December 1973 the appellant took her to her parent's bedroom and pushed her back onto the end of the bed. Kylie was in the cot. He removed the complainant's pants and put his penis inside her vagina. She and Kylie were crying. After that, the appellant told her to change the nappy for Kylie (count 2 - the cot incident). 7 The family later moved to Batar Road, Kendall. On an occasion during the Christmas holidays she was cleaning the windows of a small back bedroom of a house prior to moving in. She was about 12. Her brothers were outside. The appellant came in, put her down on the floor and put his penis into her vagina (count 3 - the backroom incident). The indictment originally alleged that the offence occurred between 25 October 1973 and 31 December 1973. The judge granted leave to amend the indictment and the date 1 February 1975 was substituted for 31 December 1973. 8 There was a further incident when she was about 12 years old and allegedly between 25 October 1974 and 25 October 1975. She was in a truck with the appellant who was driving to Wauchope. He offered to buy her nail polish. She was not normally allowed to wear it and was excited. However, he said that she would only get the nail polish if she was a good girl. As she knew what that meant, she was no longer happy. He drove into the bush. She resisted by fighting but he pushed her back onto the seat, removed her pants and had intercourse with her (count 4 - the nail polish incident). 9 On another occasion allegedly between 25 October 1974 and 31 December 1974 she was in the truck with the appellant returning from Wauchope. When they arrived at Lake Cathie the tide was out. The appellant stated that he wished to investigate a site to harvest yabbies. They got out of the truck. The appellant put her down on a sandy area and inserted his penis inside her vagina (count 5 - the yabbie incident) On her return home she was not asked anything about her clothing. 10 The complainant stated that while living with the appellant and her family she had become pregnant twice. The first pregnancy occurred when she was living at Batar Road, Kendall beside the showground just before her thirteenth birthday (25 October 1975). The intercourse allegedly occurred between 1 January 1975 and 25 October 1975. Her mother and the appellant took her to Sydney to have the pregnancy terminated. She did not have intercourse with anyone other than the appellant prior to her having the abortion. 11 The second abortion occurred in 1977. The complainant was living in Kew Road, Kendall beside the bridge. She went with her mother and her sister to Sydney for the abortion. 12 In re-examination the complainant said that she told her friend, VB, that the appellant was responsible for her pregnancy but at his direction she had told everyone else it was RC, a local lad. (Count 6 - "the first pregnancy incident") Ms Brown was called. She gave evidence of an occasion in 1975 when the complainant visited her house with the complainant's mother and father. In 1977 the complainant, her mother and her sister visited her and her mother and apparently stayed with them. She gave no other evidence and was not cross-examined. The Crown was not permitted to adduce any evidence from Vanessa Brown as to any conversation between her and the complainant as to complaint. 13 At Easter (1976) when she was 13 years old she was in a tent in the backyard of her grandmother's home in Sydney. Her mother and brothers were at the park at the time. The appellant pushed her onto the floor of the tent and had sexual intercourse with her. She tried to fight him off but to no avail. She was unable to scream because he had his hand over her mouth (count 7 - the tent incident) The indictment originally alleged that this incident took place between 1 April 1975 and 30 April 1975. The judge gave leave to amend the indictment so that 30 April 1975 became 30 April 1976. The trial judge incorrectly told the jury in her summing up that the relevant dates were 1 April 1975 and 30 April 1975. It was in cross-examination that the complainant stated that the incident took place at Easter 1976 when she was 13, not 12. The judge was not asked to correct the slip. The jury had a copy of the amended indictment. 14 When she was aged 14 there was an incident when she was sweeping the hallway. Her mother was out. The appellant sent the other children outside the house. The appellant pulled her up in the hallway and she tried to fight him off. Her younger sister came into the house. The appellant showed the younger sister how to ride a broom like a horse and sent her off to play. The appellant took her to the master bedroom where he had intercourse with her. (count 8 - the broom incident). 15 In cross-examination the complainant agreed that at the committal proceedings she had given evidence that at the time of the incident she was between 10 and 11 and that Kylie had not had her first birthday. There was some difficulty about the dates. The indictment initially alleged that the incident had occurred between 1 January 1977 and 31 December 1977. The judge gave leave to amend so that count 8 alleged the occurrence of the incident between 25 October 1976 and 31 December 1977. In her summing up the judge referred to the original dates and not the amended dates. She was not asked to correct this slip. 16 On an occasion shortly before her parents separated and allegedly between January 1978 and 1 March 1979 and when she was 15 the complainant wanted to accompany her mother to a game of bingo. There was a question whether the incident occurred in February 1978 or February 1979. The appellant refused to let her go on the pretext that she had not cleaned the skirting boards and Bryan went instead. The appellant urged her mother to go without her. After that he sent Eric and Kylie to the shop across the road. The appellant told the complainant to stop cleaning the skirting boards. She asked why she was not allowed to go with her mother. The appellant replied "How else could I keep you at home." Her response was, "Not again." He took her to the bedroom and had sexual intercourse with her. Later she told the appellant that she had heard her mother returning to the house. The appellant did not believe her and stated, "You are not gettting away until I have finished." Her mother walked into the bedroom and told the complainant to get out. Her parents then had an argument and separated shortly afterwards. The complainant said that while she may have got the date wrong, the incident occurred. (count 9 - "the mother came in incident""). 17 The complainant's mother did not give evidence due to illness and Dr K J Dobler gave evidence that the mother was suffering from extremely severe asthma and unstable diabetes and was unfit to come to court to give evidence. At the time of the hearing she was in Cessnock Hospital and had earlier been in the intensive care unit there. 18 The indictment originally alleged that the incident took place between 31 January 1978 and 1 March 1978 at Kendall. The judge gave leave to amend and the date 1 March 1979 was substituted for the date 1 March 1978 in the indictment. The judge in her summing up wrongly said that the complainant was alleged by the Crown to be 12 at the time. She was not asked to correct the mistake. 19 The complainant gave evidence of other sexual assaults on her. She said that when she was 15 years old there was an incident when she was dragged onto the floor and taken into a bedroom by the appellant where attempts were made to remove a splinter from her bottom with a pen knife. Sexual intercourse followed. 20 In cross examination she said there was an incident in which the appellant had intercourse with her at the back of and under the house at Batar Road Kendall while there were workmen in the vicinity. 21 She gave evidence of an occasion in the house beside the showground when she was practising her reading. She was 13 years old. The appellant was in bed and required her to obtain a book and bring it to him. Her brothers were outside. He made her sit on top of him while she was reading the book. During this time he had sexual intercourse with her. She said that Eric came in and was sent out, the appellant telling Eric that he was teaching the complainant to read better. 22 In her evidence in chief and initially in cross-examination she said that only her brother Eric walked in. Later in cross-examination she said that both her brothers walked in. This was consistent with the statement which she had given to the police. In explanation in cross-examination when asked why she had only said it was Eric who came in she replied, "They both are, Eric just stuck in my mind more than Brian." 23 Eric Whitfield (aka Bond) said that on one occasion when he was aged 10 or 11 he returned to the house and heard the complainant crying. She was in her parent's bedroom. He found the complainant's "feet sticking out from and shins sticking out from behind the end of the bed." Her knickers were around one ankle and the appellant's feet were in between hers with his stubby shorts down around his ankles. In cross examination he confirmed that they were on the floor of the bedroom and not on the bed. Eric Whitfield recalled an incident happening before his thirteenth birthday (3 April 1976). He was living at Kendall. His mother and brother went to bingo and he was sent by the appellant to a corner store with Kylie. The complainant was at home with the appellant. On Eric's way home he saw his mother's brown station-wagon parked near the house. There was a fairly loud argument between his mother and the appellant. The complainant was in the bedroom crying. Eric Whitfield also gave evidence of the appellant on occasions when his wife and the children's mother went out sending the other children out of the house for substantial periods while the complainant was kept in the house. The other children were not to return early. It was described as the unwritten rule. 24 Brian Raymond Bond, gave evidence that there was an incident when he went with his mother to bingo and came home early. He heard his mother and the appellant arguing. Within a very short period his father left home. 25 Detective Garside stated that he was unable to obtain any medical records from Dr Dainius of Port Macquarie whom the complainant had seen about her second pregnancy or any medical records about the termination. The complainant first saw the police on 4 May 1995. The Defence case 26 The appellant said that none of the incidents alleged occurred including those not the subject of the counts on the indictment. As to count 3 the appellant gave evidence that the family did not move into the house at Batar Road until February 1975. Mr William McKenzie, an owner driver of an interstate road transport truck, and who did work for Mr Bond for about 7 years from about 1973 when he was approximately 18 or 19 years of age, remembered assisting him to move a house from Port Macquarie to Kendall. The job was in Batar Creek Road. He said that once all the brick work had been done for all the piers for the foundations at the new site the house was let down, steel pulled out from underneath it and loaded onto trucks along with accompanying timber. There was then a lot of work to be done on the house. Mr McKenzie assisted Mr Bond at the weekends. Mr McKenzie said that lowering the house and pulling the steel out was dangerous. There was nobody under the house or around it and certainly no children. It is apparent from Mr McKenzie's evidence that there was quite a lot of work done on the site before the house was shifted and even more work done on the house once it had been shifted and that this work extended over many weeks if not months. Mr McKenzie's evidence is relevant to the incident which allegedly occurred while the house was being completed. 27 As to the 6th count the appellant gave evidence that the complainant told him that RC (a friend of the appellant's sons) was responsible for her pregnancy. As to the 7th count the appellant stated that the family had stayed in a tent on several occasions when attending the Royal Easter Show to show dogs. As to the 8th count the appellant could not recall teaching Kylie to ride a broom like a horse. As to the 9th count the appellant said that the separation from his wife did not occur until February 1979 and occurred because he was having an affair with Elaine (his current wife). Some Family Court documents filed on behalf of the appellant indicated that the date of separation was 6 February 1979. There was no independent corroboration of this fact. The decree Nisi was made on 30 September 1980 and became absolute on 31 October 1980. The appellant attached considerable weight to the lengthy delay in complaint. It was about 17 years from the last incident and 24 years from the incident the subject of count 1. He also relied on no complaint being made until she had seen a solicitor consequent upon her arrest for stealing (shoplifting). He had advised her to see the police about the appellant's misconduct. 28 Appeal Grounds 8, 8A and 9 read: 8. The appellant has available to him fresh evidence the absence of which at trial resulted in a miscarriage of justice. 8A. The failure by the Crown to provide the appellant's legal representatives with copies of medical reports prepared in relation to the complainant's claim for victim compensation resulted in a miscarriage of justice. 9. There is a significant possibility that the jury acting reasonably, would have acquitted the appellant if the new evidence had been before them. 29 Eric Frank Whitfield had convictions which were not known to the Crown prosecutor, his instructing solicitor, counsel for the appellant and his instructing solicitor. There is no direct evidence as to the appellant's lack of knowledge. The convictions were in the name of Eric Frank Bond. There was no cross reference to Eric Frank Whitfield, which was his mother's maiden name. The appellant and his son have been on poor terms for many years. However, as his daughter, Kylie and his former wife knew, there is a real chance, despite the poor relations in the family that the rest of the family and the appellant knew. In the absence of evidence from the appellant or other acceptable evidence I am unable to make any findings as to whether the appellant knew or did not know of the convictions of Mr Whitfield. 30 Having been committed for trial on 3 August 1986 Eric Frank Whitfield was sentenced on 13 August 1987, consequent upon pleas of guilty to each of two counts of indecent assault, to 4 years hard labour suspended on his entering a recognisance himself in the sum of $4000 to be of good behaviour for four years. On a charge of sexual intercourse without consent he was sentenced to 6 years hard labour suspended on him entering into a recognisance himself in the sum of $6000 to be of good behaviour for 6 years. He was subject to the supervision of the Probation and Parole Service. 31 The victim was his younger sister, Kylie. She wrote a moving letter for leniency. She attributed his conduct to the serious accident which he had in October 1984. She was worried that he was going to die. She wrote, "He was in hospital for about 1 month and 4 days and in that time the doctors had told us that he had brain damage … He was out of hospital for about 1 month before he started coming into my room and touching me. I blame it on the accident because he never touched me before the accident …" She wrote of the help he had given her, of her love for him and his rehabilitation. 32 It appears that at the sentence hearing Mr Whitfield relied upon the reports of Dr G F Mackintosh, a consultant psychiatrist. The doctor recorded that the appellant had sustained a head injury in a motor vehicle accident in October 1984 and was unconscious for 7 days. He regarded this as very significant. The doctor thought that the symptoms which he described were consistent with the type of post head injury syndrome which is commonly seen after the sort of accident he described. In his report of 26 September 1986 Dr Mackintosh adhered to his view that the appellant had a post head injury syndrome and that this had made him more impulsive and may have helped him act with less discretion than he otherwise might have. He wrote: "In the main though I feel his problem is a psychological one. His main problem is immaturity and he is going to need continued counselling and guidance for some time to come." 33 The doctor thought his unstable childhood was a major problem. The doctor stated that Eric Frank Whitfield appeared to be genuinely sorry for what he had done. 34 In his report of 7 August 1987 Dr Mackintosh adhered to his earlier views. He wrote that Mr Whitfield would need counselling for a year or two and that he had quite a lot of maturing to do. 35 The records of Hastings District Hospital reveal that Eric Frank Bond was admitted on 6 October 1984 and discharged on 8 November 1984. The discharge summary states that he was initially quite shocked and required resuscitation. He underwent surgery on 6 and 8 October 1984. He is not recorded as being unconscious. The entries suggest the contrary. The discharge summary states that there was no head injury. 36 The medical reports and the pre-sentence report suggest rather strongly that Eric Frank Bond was much affected by his father's alleged sexual abuse of the complainant. Any use of the hospital notes and the reports of Dr Mackintosh would have to be skilful and not let in evidence in cross examination or re-examination any matter as to the father's behaviour. That would strengthen the Crown case considerably. The difficulty is that that behaviour was said to be a significant factor in the son's behaviour. 37 The appellant also complained that the prosecution had failed to make available the documents relating to the complainant's claim for victim's compensation, and, in particular, two reports of Ms T Chauncy, consultant psychologist. These were available at the sentence hearing but not at the trial. The report of 13 February 1997 records the history given by the complainant. It includes: "Her most salient memories of the sexual assaults appear to begin around the age of 5 however Ms Marsh has experienced flashbacks and memory lapses dating back to a much younger age, possibly 2 years. Ms Marsh informed me that her father sexually assaulted her many times over the years, sometimes with other people in the near vicinity of the assaults, and at one stage Ms Marsh's mother had interrupted Mr Bond assaulting Ms Marsh." 38 Counsel submitted that this was inconsistent with the complainant's evidence. I do not agree. She gave evidence of an incident when she was 5 years old. Her memories of earlier occasions were not sufficiently formed to be led in evidence. The reports record Ms Marsh's distress. There was no mileage for the cross examiner in these reports. 39 There is a further matter. In cross examination the complainant was asked about the advice that Mr P Cleaves, solicitor had given when she consulted him about the charge of stealing (shoplifting). That was finalised on 27 March 1995 without a conviction being recorded, that is about 6 weeks before she went to the police. Mr Cleaves advised her to go to the police and talk to them about her complaints of sexual assault. This passage appears in her cross examination: "Q. Did he also tell you about your rights generally as a victim of sexual assault? A. I don't remember much of what was said to me that day I was very upset and that whole day's a real blur, I don't remember. I remember going home and going back, I don't remember much else. Q. And do you remember that Mr Cleaves told you about your rights to obtain financial compensation didn't he? A. No he didn't. Q. I suggest to you that he did, and you know about that don't you? A. I don't remember. Q. You don't remember? A. No." 40 Unfortunately, a double-barrelled question was asked and only the first part of the question was answered, namely: "Q. I suggest to you that he did, and you know about that don't you? A. I don't remember." 41 The cross examiner did not press for an answer to the second question he had asked, allowing it to pass. The evidence does not sustain the suggestion that Mr Cleaves told her about her rights to victim's compensation. 42 The complainant had another solicitor, namely, Mr Geoff Oliver of Oliver Campbell, Cessnock prepare her victim's compensation claim. She saw the consultant psychologist on 5 February 1997 to obtain a report supporting the claim. The psychologist treated and counselled the complainant for some considerable time. That may have started prior to 5 February 1997. It continued during 1997 and probably until at least May 1999 on an irregular basis. Mrs Marsh found herself "stressed" after the treatment sessions. 43 After counsel made their final addresses the Crown prosecutor pointed out that it was never put to the complainant that she made her complaint because she had been charged with stealing and that the only question that was put in relation to victim's compensation was that her solicitor had made her aware of it, which she denied. 44 In summing up the judge said: "She was cross examined about her entitlement to claim compensation if she was a victim of sexual assault. She denied she knew of her rights. That is a matter for you to make of what you will." 45 The evidence quoted earlier does not completely coincide with the passage just quoted from the summing up. The complainant did not deny that she knew of her rights to claim compensation. She could not remember what Mr Cleaves said to her. She did not deal with the question that she knew about financial compensation for victims. If neither the judge nor counsel had a transcript and everyone was relying on memory what happened is very understandable. Perhaps the court was left with the impression encapsulated in the summing up. 46 The significant point is that the case went to the jury upon the basis that she was not aware of her rights to claim victim's compensation. That may have been true in May 1995. The evidence upon that point is not conclusive. However by at least 21 January 1997, if not much earlier she was aware of her rights as her solicitors (Oliver Campbell) were seeking a report for the purposes of victim compensation. 47 After the verdicts, the solicitor handling the matter for the prosecution turned her mind to the preparation of a Victim Impact Statement and sought advice as to how to prepare it from another officer in the prosecution office. She was advised to ascertain whether Ms Marsh had any psychological reports. The solicitor thinks that the two reports were first handed to her by Ms Marsh at the sentence hearing on 17 September 1999. They were attached to the Victim Impact Statement and tendered during the sentence hearing. 48 Counsel for the appellant relied on Lewis-Hamilton 1997 92 A Crim R 532 and CPK (NSW CCA unreported 21 June 1995) In CPK Gleeson CJ referred to the obligation of the prosecuting authorities to make available relevant material to the defence. It was held that the prosecution was bound to make available medical reports which contained information appearing to contradict some of the evidence of the complainant and other information potentially damaging to her reliability. 49 In K (1991) 161 LSJS, (SA CCA) King CJ said: " the prosecution must disclose to the defence any conviction of prosecution witnesses of which the prosecution is aware This obligation must in principle extend … also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses … The obligation arises … only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross examination based upon it might elicit answers materially affecting the credibility of the witness." 50 In Lewis-Hamilton, the victim impact statement was not disclosed to the applicant until after he had been found guilty of two counts of sexual penetration. That statement contained material which defence counsel could have cross-examined upon. That material was relevant to the issues in the trial but counsel would have to be very careful in cross examining. The judges thought that skilful cross examination based on that material could have affected, perhaps changed, the jury's verdict. Her credibility could have been adversely affected. It was held that a miscarriage of justice had resulted from the prosecution's failure to make the material available prior to the trial. 51 In New South Wales the Victim Impact Statement is usually (but certainly not always) prepared after the conviction of the accused. The question of sentence is usually adjourned for a pre-sentence report and to enable the accused to obtain reports and evidence for the sentence hearing. Frequently, the only evidence tendered immediately after the verdicts is that containing the criminal antecedents of the accused. 52 Bearing in mind the practice in New South Wales I would not hold that the victim impact statement has to be disclosed prior to trial unless it has been prepared and contains relevant material. If the Crown holds any medical reports prior to or at the trial containing relevant material they should be disclosed to the accused. 53 The appellant further relied on the affidavit of Brian Raymond Bond of 27 March 2000. At the request of Det Snr Cons Garside, he attended at Toronto Police station on 8 December 1997 and made a statement. Mr BR Bond said that at no time prior to giving his statement was he informed of the details of the allegations made by his older sister against his father. He was asked what he remembered of his childhood and his mother and father splitting up and supplied as many details as he could. He was asked if he had ever walked into a room and seen his father in a position with the complainant that he should not have been in. He replied in the negative. At no time was he informed that his elder sister had alleged that he and Eric walked in on her and her father when he was assaulting her sexually. 54 Mr BR Bond stated that he was told that he was not allowed to talk to his father or his sister about his statement as he was a witness. Mr BR Bond said that he was subpoenaed to give evidence at his father's trial starting on 16 August 1999 and attended at court. When waiting outside he heard an officer say words to this effect, "In court you can only be asked about what's in your statement." Mr Bond gave evidence on 17 August 1999. Mr BR Bond said that as well as the evidence he gave he could have said: "8.1 At no time did I ever observe my father having sex with or engaged in any other inappropriate behaviour with Maxine. 8.2 In relation to the third count in the indictment said to have occurred between 25 October 1973 and 1 February 1975 at Kendall, I helped with the work removing steel from under the house and can say that at no time was Maxine not present when that occurred. 8.3 In relation to the ninth count in the indictment said to have occurred between 31 January 1978 and 1 March 1979 at Kendall I recall that I went to bingo with my mother. Maxine stayed home with my father. When I left with my mother, Eric and Kylie were across the road. My mother was angry in the car but not crying. We were out for about 2-3 hours. After we returned my mother told me that my father was moving out, which occurred the next morning." 55 It was common ground that Senior Counsel for the appellant and his solicitor had not interviewed Mr BR Bond prior to his giving evidence. Nevertheless, counsel questioned Mr BR Bond in some detail about the argument between his parents when his mother returned home unexpectedly before going to bingo and the subsequent split in their relationship. His elder sister had stayed home with the appellant. 56 Mr BR Bond stated in his evidence at the trial that there were occasions when his mother was away from the home, when the three younger children were sent outside by the appellant and the complainant remained in the house with him. 57 The "further evidence" which Mr RA Bond states that he could give would make no difference to the outcome of the trial. Further, arrangements could have been made by counsel and the solicitor for the appellant to interview Mr RA Bond at the court complex while he was there. I reject the application to lead evidence from Mr RA Bond. 58 I return to the evidence as to Mr Eric Frank Whitfield, the psychological reports and the victim's compensation claim. Mr Whitfield was born on 3 April 1965 and was thus 19 at the time of his accident and 22 at the time of sentencing. In 1986 when he first saw Dr Mackintosh he had been committed for trial. There are substantial grounds for contending that Eric Frank Whitfield exaggerated the effects of his serious accident and misled the doctor by stating that he had suffered a head injury and been unconscious for seven days. The focus in subsequent reports switched to the appellant's psychological problems, his immaturity and the effect of the father's incestuous conduct with his daughter. 59 The jury could conclude that Mr Whitfield was a person of bad character because of the charges on which he was sentenced and that he was dishonest or prepared to be dishonest when that advanced his interests and helped him to avoid a prison sentence. On the other hand this conduct occurred 12 years prior to the trial when Mr Whitfield was a young man. Mr Whitfield did not have the same incentive to be deceptive over his father's conduct. 60 Mr Whitfield's evidence did not directly support any of the counts. His description of finding the appellant and the complainant together on the floor of the bedroom on one occasion was not supported by the complainant. He only heard of the aftermath of the bingo incident (count 9). The most telling piece of evidence which he gave was of the appellant, when his wife was away, sending the other children out of the house and to other activities while he kept the complainant at home. That showed an unusual relationship. There was other evidence of this, namely, that of BR Bond. It did not, of course, prove that any particular act or transgression had occurred. For present purposes I have not taken into account the capacity of the Whitfield materials to rebound upon the appellant if evidence explaining Mr Whitfield's condition and conduct was admitted. I have assumed that counsel cross examining would do so in such a way as not to render such material admissible. 61 There is a reasonable possibility that the jury could have regarded the evidence of Mr Whitfield as affording some support to that of the complainant and it could have been one of the factors in the jury accepting the complainant. 62 As to the statement of the judge that the complainant denied that she knew of her rights to claim victims compensation the case went forward to the jury on an incorrect basis. A claim had been in contemplation since at least January 1997. A jury could regard a pending or intended claim for victim's compensation as a factor relevant to her credibility. In a case in which credibility was very important the prosecution case went to the jury upon materials which were incomplete and with them not knowing of factors which could affect their view of the credibility of the complainant and Mr Eric Whitfield. In combination, the matters have weight and a new trial must be had as there is a reasonable possibility that if the jury had known of these matters their verdicts could have been different. 63 In view of this conclusion it is unnecessary for this Court to deal with grounds of appeal 2 to 5 relating to the judge's directions. The appellant was represented at his trial by senior counsel who is one of the leaders of the bar in the criminal field and expert in the areas of the law covered by these grounds. The objections were not taken at the trial. Senior Counsel must have determined that it was in the best interests of the accused's not to raise the complaints now made. There had been a relatively short trial and a short summing up. That could be seen to favour the accused. It is not necessary to deal further with these grounds. Appeal Ground 1 was not pressed. 64 Appeal Grounds 6 and 7 read: "6. The not guilty verdict in relation to count 1 was inconsistent with guilty verdicts in relation to counts 2 to 9. 7. The verdicts were unreasonable/incapable of being supported by the evidence." 65 The appellant submitted that if the jury entertained a reasonable doubt as to the first count they should logically have entertained a reasonable doubt in relation to the balance of the counts. On all counts, the jury's decision depended solely on their acceptance or otherwise of the complainant. As earlier indicated there was evidence that the intercourse alleged could not have happened at the venue suggested - because the family did not live there at the time at which the offence was alleged to have occurred. While there were amendments to the Indictment to accommodate the approximate dates of other offences this was the only case where the intercourse could not have taken place where suggested. Thus, it is readily understandable why the jury would not have been satisfied beyond reasonable doubt as to count 1. 66 In cross-examination she said that the sexual intercourse the subject of count 1 hurt but it did not cause her any injury of which she knew. She did not see a doctor. When asked whether she had blood on any part of her clothing she said, "I don't remember, I don't know." This passage appears: "Q. You say that was the very first time … that your father had sexual intercourse with you, but you can't remember anything about it other than it hurt? A. Yeah that's all I can remember."" 67 There was also the problem that the complainant was aged about 8 years if the incident happened prior to 25 October 1971 and 10 years of age if the incident happened after 25 October 1972. The date of the move to Hastings River Drive was said to be about mid 1972. The evidence did not enable the jury to say with any degree of certainty that the incident happened prior to 25 October 1972. It was an element of the count charged that the complainant was under the age of 10 years. The jury may not have been satisfied that the complainant was under the age of ten years at the time of the offence. 68 In support of his submission that the verdicts were unreasonable and that the jury ought to have entertained a reasonable doubt the appellant relied on an examination of the whole of the evidence and these matters in particular: (a) the lack of corroboration of the complainant; (b) other evidence tendered to contradict the truth of the claims made by the complainant. Reliance was placed on her evidence as to who witnessed the reading incident and the failure of her brothers to support her version. Eric Whitfield also deposed to an incident taking place on the floor and not on the bed. There was also the evidence as to what occurred while work was being carried out at Batar Road, Kendall; (c) the unexplained delay in complaint and complaint only being made after she was charged with stealing; (d) the unexplained delay in the matter coming to trial; (e) the absence of detail in the complainant's evidence and problems with her evidence as to when the incidents alleged occurred. Four of the counts were amended as to the approximate dates of the offence alleged; (f) it was in cross examination that the complainant gave evidence of the appellant having sexual intercourse under the house at Batar Road while work was in progress on the house. The evidence of Mr McKenzie makes this unlikely; (g) the absence of medical evidence in relation to any of the allegations and the terminations; (h) the evidence as led of Brian Bond did not put forward matters which tended to support the evidence of the appellant and undermine that of the complainant; (i) the absence of any suggestion by the complainant that her maternal great grandfather, who lived with the family from 1971 to 1979, ever witnessed any sexual misconduct. Further, as to the 9th count, there was the comment of Eric Whitfield in response to a fairly broad question from the Crown Prosecutor that after he (Whitfield) returned to the house the great grandfather "actually was telling my brother that my father was a bad and evil man." This may have impermissibly prejudiced the jury against the appellant; (j) the not guilty verdict returned on count 1; 69 I have earlier explained why I do not regard the "not guilty" verdict on count 1 as affecting the verdicts on the other counts. The point about the great grandfather lacks substance. There is no evidence that he is still alive. It would be surprising if any of the allegedly criminal acts of the appellant towards his daughter took place in the presence of the great grandfather. I doubt if the impermissible comment of Eric Whitfield would have influenced the jury. Having regard to the relationship between the father and the son it is the sort of comment that would be ignored. 70 I do not agree that the complainant's evidence generally lacked cogency. I would not attach much importance to the complainant's difficulty with dates when the events occurred so many years ago and the complainant was aged between 8 and 15 years. 71 The delay in complaint is an important point but that is not of itself or in conjunction with the other points sufficient to render the verdicts insupportable. There is evidence that the appellant was and is a big man and that the children were afraid of him and submissive to him as they grew up. 72 The Crown contended that the appellant's evidence supported many of the details in the complainant's evidence. As to count 2 the appellant agreed that Kylie's cot was in his bedroom at the house at St Mary's in 1973. As to count 3 the appellant accepted that the windows of the house at Batar Creek Road had to be cleaned when the house was completed in February 1975 and that he could have asked the complainant to clean the windows at the house during the school holidays in 1974-1975. However, he later denied that this occurred. As to count 4 the appellant conceded that it was possible that he took the complainant on her own in his truck. 73 As to count 6 the appellant said that he went to Sydney with the complainant and his wife for the termination of the first pregnancy but he did not go with them for the second termination. He did not know who was responsible for the second pregnancy and made no enquiries to this end." He said, "I was fed up with it by then." As to count 7 the appellant agreed that his family camped in a tent in his mother's backyard in Sydney at Easter 1976. 74 As to count 9 the appellant agreed that there were occasions when he allowed his other children to go across to the Dicky Croese Shop "and I've kept [the complainant] at home". 75 The complainant did not say as was submitted on behalf of the appellant that the act of sexual intercourse occurred while the house was being "lowered". She said it occurred while the house was being "worked on, built." 76 There is no direct corroborating evidence in respect of any of the counts of the appellant having intercourse with the complainant. The pregnancies certainly provide evidence of the complainant having had intercourse. The failure of the appellant to make enquiries as to the father on the second occasion is curious. The appellant's concession that there were occasions when he allowed the three younger children to go across to the Dicky Croese Shop must be taken with the evidence of Eric Whitfield that he sent the three younger children out and kept the complainant at home and that there was an unwritten rule that the younger child should not return until after the lapse of a substantial period of time. This points to dubious conduct. Mr BR Bond gave evidence of a similar practice on the appellant's part. If the alleged practice had only happened on 2 or 3 occasions that would not raise a question in the mind but the evidence suggests greater frequency. 77 Any examination of the evidence leads to the conclusion that it is well open to a jury to be satisfied beyond reasonable doubt of the guilt of the appellant on counts 2 to 9. I propose the following orders: 78 (a) Appeal allowed; convictions and sentences quashed; (b) A new trial be had. 79 IRELAND AJ: I agree with Smart AJ for the reasons given by his Honour, sharing the regret expressed by Stein JA. ********** 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. 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