New South Wales Court of Criminal Appeal CITATION : Regina -v- HJS [2000] NSWCCA 205 revised - 29/06/2000 FILE NUMBER(S) : CCA 60361/98 HEARING DATE(S) : 23/03/00 JUDGMENT DATE : 9 June 2000 PARTIES : Regina HJS JUDGMENT OF : Spigelman CJ at 1; Ireland J at 2; Simpson J at 128 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/21/0251 LOWER COURT JUDICIAL Grogan DCJ OFFICER : COUNSEL : DC Frearson - Crown GP Craddock - Appellant SOLICITORS : SE O'Connor - Crown TA Murphy - Appellant CATCHWORDS : Criminal law - sexual assault upon the four daughters of the appellant under the age of 16 years - no error on the part of the trial judge in refusing application for separate trials - erroneous introduction of name of unrelated complainant, an irregularity without miscarriage of justice - whether Crown entitled to lead evidence in reply - duty of judge to give directions on consumption of alcohol, regardless of the views of counsel - Evidence of complaint, wrongly admitted under S 66 of the Evidence Act, 1995 and which may not have been admitted under S 108(3) of that Act - nevertheless no miscarriage of justice. LEGISLATION CITED : Crimes Act, 1900 Evidence Act, 1995 Maric -v- The Queen (1978) 52 ALJR 631 R -v- Marsland (NSWCCA - unreported - 17.07.91) R -v- Oliviera (NSWCCA - unreported - 26.11.93) R -v- Rich (1998) 102 A Crim R 165 Palmer -v- The Queen (1998) 193 CLR 1 R -v- Baker (1999) NSW CCA 277 - unreported. Tillick -v- The Queen (1981) 147 CLR 565 R -v- Stokes and Difford 51 A Crim R 25 CASES CITED: R -v- Clough (1992) 28 NSWLR 396 @ 407-8 Graham -v- R [1998] HCA 61; 195 CLR 606 R -v- H (1997) 92 A Crim R 168 R -v- BD (1997) 94 A Crim R 131 R -v- Shaw (1952) 85 CLR 365 R -v- Lawrence (1981) 38 ALR 1; R -v- Killick (1981) 147 CLR 565; R -v- Chin (1985) 157 CLR 671 R -v- Chaney (1991) 99 ALR 360 DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60361/98 SPIGELMAN CJ IRELAND J SIMPSON J Friday 9 June 2000 REGINA v HJS JUDGMENT 1 SPIGELMAN CJ: I agree with Ireland J and Simpson J. ********** IN THE COURT OF CRIMINAL APPEAL 60361/1998 SPIGELMAN CJ IRELAND J SIMPSON J Friday, 9 June, 2000 REGINA -v- HJS JUDGMENT 2 IRELAND J: The appellant was indicted before his Honour Judge Grogan at the Parramatta District Court on 20 May, 1998 on ten counts of sexual assault upon his four daughters to whom I shall refer as [M], [D], [S] and [J]. 3 Five of these counts related to charges in contravention of S 67 of the Crimes Act, 1900 (the Act) being carnal knowledge of a girl under the age of ten years, which at the time of sentence carried a maximum penalty of penal servitude for life. 4 Three counts related to charges in contravention of S 76 of the Act, being sexual assault of a female under the age of sixteen years, which carried a maximum sentence of penal servitude for five years. 5 Two counts related to charges in contravention of S 72 of the Act, being assault a female above the age of ten years and under the age of sixteen years with intent to carnally know her, which offence carries a maximum penalty of penal servitude for five years. 6 Counts 1, 2 and 4 related to daughter [M]; 7 counts 7, 8, 9 and 10 related to daughter [D]; 8 counts 2 and 6 related to daughter [J]; 9 count 5 related to daughter [S]. 10 The trial aborted and the appellant was subsequently re-arraigned on the same charges on 25 May, 1998. 11 On 27 May, 1998 leave was granted to amend certain dates alleged in counts 1, 2, 3, 4, 7, 8 and 10, the charges remaining the same. 12 On 11 June, 1998 the jury returned a verdict of guilty on each of the ten counts. 13 On 26 June, 1998 Grogan DCJ sentenced the appellant in respect of each of the charges. Leave is not sought to appeal against the severity of the sentences imposed. 14 The Crown case, as summarised in Crown submissions "A" alleged the following facts. 15 Counts 7, 8, 9 and 10 relate to the complainant [D], who was the youngest child of the family. She was born on 8 February, 1972 and grew up in the family home at Ermington. The family was comprised of the four daughters, a son, the appellant and his wife. The appellant and his wife slept in one bedroom and the five children would alternate in bedrooms two and three. 16 The complainant [D] did not have a good relationship with the appellant. The first incident she complained of occurred when she was about six years old. On this occasion, she came home from school after her mother had just left the house. She was wearing her school uniform. The appellant entered the kitchen, where she was washing up. He pulled her backwards towards the dining room table and sat her on a chair. He requested her to get his penis out, but she refused. The appellant grabbed her hand and tried to get her to undo his zipper. The appellant undid his own zipper and exposed himself to her. He lifted her off the chair and sat on the chair himself. He pulled her underpants down and rubbed her vagina with his finger, he also penetrated her with his fingers and said that he wanted her to get wet. These events were the basis of count 7. 17 The complainant started struggling and her underpants fell off onto the floor. The appellant used both of his hands to lift her onto his legs. He used his fingers to direct his erect penis into her vagina. She tried to get away. His penis entered her vagina and she told him it was hurting. He let her off his lap, the complainant picked up her underpants and ran into her room and put them back on. She observed blood on her underpants after this. She stayed in her room until her mother came home, but she did not tell her mother what happened (count 8). 18 When the complainant [D] was nine years old, she was watching television and was wearing shorts and a t-shirt. The appellant came into the lounge-room and then took her into his bedroom. He put her on the bed and pulled down her shorts and underpants. She tried to pull her t-shirt down to cover herself and the appellant said, "Oh, don't do that, I've seen it all before" and pulled her t-shirt away from her. She was lying on her back and he lay on top of her, forcing her legs apart with his knees. He penetrated her with his penis and then said words like "Try this" or "Want to do this". He rolled the complainant onto her stomach and attempted to penetrate her again, without success. He rolled the complainant onto her back and penetrated her again. The complainant felt a wet sensation on her stomach, when the appellant rolled off. She retrieved her clothes, put them back on, and spent the rest of the afternoon out of the house (count 9). 19 When [D] was aged about eleven years, she was at her aunt's house at Kurrajong. On a Sunday afternoon, the appellant came to collect her to return to Ermington for school on Monday. The complainant asked the appellant to unlock the back door of the car, so she could sit there, however, an argument ensued as to where she was to sit. Eventually she was allowed to sit in the back seat. As they were driving, the complainant realised they were not going home, but were on a side track. The appellant stopped the car and opened the back door. He dragged the complainant by the ankles and placed her flat on the seat. The appellant stood by the doorway of the car and undid his trousers and took out his penis. He lay on top of the complainant in the car and tried to penetrate her with his penis. He then said words to the effect "Oh shit. Just keep your head down. Don't move". He stood up and did up the zipper of his trousers. He resumed the position in the driver's seat and told the complainant not to lift her head up. He then drove home. The complainant did not tell her mother about that incident (count 10). 20 The complainant [M] was born on 18 August, 1966 and was the second youngest daughter of the appellant. There were two older sisters, [S] and [J], and a brother who was born in between the older sisters. The brother was a slow learner who attended a special school. The complainant [M] also did not have a good relationship with the appellant. The complainant's earliest memory of being abused was when she was about four or five years old. She was playing in the backyard with her brother, when the appellant came out of the house and called the brother into a shed at the rear of the premises. The brother went into the shed and after a while the complainant went to the door of the shed to try to get her brother to come back to play. The appellant opened the door and the complainant went in. The appellant took his penis out of his shorts and pulled her hand over to touch it. He said "It's all right, touch it. It won't hurt you. Go on, pat it, it's just like a little animal". The appellant asked the brother to show the complainant what to do. The brother declined and so the appellant took the complainant's hand, put it on his penis, and made himself ejaculate. (These events gave rise to count1). 21 When [M] was five or six years old, she was at home when the appellant was painting the kitchen. The complainant's sister [J] was also at home. When the appellant finished painting he took the girls into his bedroom and asked them to touch him, they declined. He told them to get into the bed and he then took his clothes off. He lay on top of [J] and then rolled over onto the complainant [M]. He held the complainant's hands above her head with one hand and put his penis inside her. He was moving up and down and breathing heavily. He ejaculated and got off her. She did not report this to her mother (count 2). 22 There was a further incident in about 1973 when the complainant [M] was seven or eight years of age. She was sleeping on the bottom bunk of a bed with her sister [J] on the top bunk. The appellant and the mother of the girls came home from the club. They were arguing. The appellant left the bedroom and went into the kitchen. He then came into the bedroom and started calling out [J's] name. [J] did not wake up, but the complainant [M] said to the appellant "What are you doing here?" The appellant got into [M's] bed and told her not to make any noise. He removed her pyjama pants and held her hands above her head. He started rubbing his body against her and his penis became erect. He penetrated her vagina until he ejaculated (count 4). The complainant did not tell her mother of this incident, in the belief that her mother could not protect her and the need she felt to protect her mother. 23 The complainant [J] was the second eldest daughter of the appellant, having been born on 14 April, 1965. When she was between five and seven years old, she recalled being on her parents' bed. Neither she nor the appellant had any pants on. He asked her to put her mouth on his penis. She refused. She was lying down on the bed and his penis was erect. He put his penis into her vagina. He said "Oh we'll only put it in a little bit this time". He pushed his penis in and out. He took a handkerchief from the dressing table and wiped himself and the complainant (these events constituted count 3). 24 The complainant [J] recalled another incident when she was about twelve years old. She was drying dishes in the kitchen and needed to go to the toilet. She opened the door to the toilet and the appellant was sitting there. She went to go out, but he grabbed her hand and pulled her in. He put both her hands on his penis and asked her to move her hands up and down. His penis was erect. The complainant's sisters were calling out to her to come back and she managed to get away from the appellant (count 6). 25 The complainant [S] was born on 25 March, 1960 and is the eldest child of the family. When she was aged thirteen, she recalled coming into the bedroom where she thought her mother was. The appellant was there and pulled her pants down and lifted her onto the bed. The appellant removed his trousers and lay on top of the complainant. She could feel his penis pushing against her. After a while, he got up and ejaculated into a handkerchief. He said "Don't let anybody else do this to you, because I know what I'm doing and you won't fall pregnant" (count 5). The complainant[S]said that this was not the first time events such as that had occurred. She did not tell anyone about the incident. 26 MJS, the mother of the four complainants, gave evidence that she married the appellant in 1958. They had five children and lived until the early nineties at Ermington. She gave evidence that prior to the girls leaving home, she was unaware that her husband had been sexually assaulting them. When the complainant [M] was in her thirties, she inquired of her mother whether she was aware that the appellant had sex with her. Some time later the complainant [J] asked her whether she knew "Dad touched us". In November, 1995 MJS left the appellant after her daughter [J] had said to her on the telephone "Mum if you want to see your daughters and grandchildren, you've got to get out". After she left the appellant, she received a letter from him (Exhibit "F"). She received that letter on 20 December, 1995. This three page hand written letter included the following:- "Forgive me for my bad passed (sic) … My bad passed (sic) it will not go away. I'm sorry, sorry for my daughters facing all this". 27 Detective Senior Constable Grech gave evidence of speaking to the appellant on 11 January, 1996 after obtaining statements from the complainant [M] and the complainant [D]. At Forster Police Station the appellant was interviewed by way of ERISP on that day. The ERISPs of two interviews conducted on that day, with respect to the two complainants, were admitted as Exhibits "G" and "H" in the proceedings, their transcripts being "G1" and "H1" respectively. The appellant denied sexually assaulting [D] and [M], but when asked if any of the alleged events may have taken place when he was under the influence of alcohol, the appellant replied "Well, I suppose there'd have to be an element of doubt to that because I just don't, I don't know what it was like. I don't know what I - whatever I done when I was drunk do so I, I just don't really know if it was possible or not". (Q.111) When asked what he meant, he said "Well naturally it could have happened if I was drunk at the time and I don't know what I was doing, but as far as I know it definitely did not happen but there's always an element of doubt in - when you're drunk and that sort of thing at that particular time and I'm not going to use that as an excuse for any of these allegations". 28 The appellant was again interviewed on 7 February, 1996 in relation to the complainant's[J]and [S]. He did not respond to any allegations in this third interview relating to the offences alleged with regard to the complainants[J]and [S]. 29 In his defence the appellant gave evidence in which he related a long work history, including twenty seven years in continuous employment with one employer. He denied knowledge of any of the incidents described by the complainants and denied sexually assaulting any of his children, or having touched any of his daughters or having sexual intercourse with them. 30 The appellant described his relationship with his family as close and that with his daughter [M] as very close. He described disciplining the children if they misbehaved and described his relationship with the complainant [D] as a good relationship. He gave evidence of keeping bees in the Kurrajong area and of transporting the hives around. He recalled one dirt road that he used to drive upon and said this could be the only road the complainant [D] was referring to. He denied that he attempted to sexually assault his daughter in the back seat of his car. 31 In further evidence, the appellant said that prior to 1990 none of his daughters approached him about allegations of sexual abuse. After that time the complainant [J], he said, asked him had he ever had sex with her, to which he had responded in the negative. She also asked whether he had had sex with the complainant [M], which he also denied. 32 The appellant in evidence sought to explain the implications in the letter, Exhibit "F", in particular the words "Forgive me for my bad passed (sic)" as being a reference to his problem with alcohol saying that he may even have been an alcoholic at that time. His statement "and I need health care now" was, he said, a reference to the fact that he had already had a heart attack. His further reference to a "bad passed (sic)" could also have meant his gambling problem. The sentence in the letter "My bad passed (sic), it will not go away, I am sorry for my daughters facing all this" he described as being a reference to his problem with alcohol saying that any person caring for their family would be sorry. 33 The appellant gave evidence that as late as December 1995 he still had a problem with alcohol. The thrust of his letter, he said, was that he wanted his wife back. It had taken a number of days to write it and he finished it after he had spoken to police. He was unable to recall what he meant by the expression "responsibility for my actions and/or consequences wrong doing". 34 With reference to the answer given by him on 11 January, 1996 in response to the question "Q. Did you ever sexually interfere with [M]?", his answer being "A. To the best of my knowledge, no, I definitely did not", he stated that the words "To the best of my knowledge" would have been a slip of the tongue and to him it was the same as saying simply "no". 35 In a short case in reply, the complainant [M] gave evidence that she had gone to the police as a result of a conversation with her aunt. She felt it was her duty to the authorities and said that to her knowledge it was Constable Grech who contacted her three sisters. 36 She also gave evidence that she did not go to police with a view to claiming compensation, she did not know that she could claim compensation when she went to the police and that she did not want the house at Kurrajong. 37 The appellant raises fifteen grounds of appeal. Ground 1 - His Honour erred in declining to hear an application for separate trials with respect to the allegations of the four complainants 38 On behalf of the appellant it is submitted that separate trials with regard to each complainant should have been held due to a "significant possibility of concoction as between the complainants", they being sisters, two having made statements in December 1995 and the other two in January 1996 after the appellant had been charged in relation to the allegations of two complainants. It was submitted that the risk of collusion was such that separate trials should have been ordered. 39 The history of the proceedings include an earlier application for separate trials which resulted in the severance of proceedings concerning a complainant who is a niece of the appellant. This procedure was adopted by a judge other than the trial judge. At that time a determination was made that the trial with respect to the four complainants who were sisters should be a joint trial. 40 It is not submitted that in considering the issue of separate trials, the judge hearing that application did not take into account the relevant considerations appropriate for such a determination. 41 Certainly one consideration was anticipated evidence that two of the sisters, [M] and [J], would give evidence of an incident involving sexual assault when both were present. As it happened, [J] did not recall the incident in question. Nevertheless, the judge in considering the application was mindful of the tendency aspect of the evidence to be called from each of the four complainants recognising that "it was capable of persuading a jury that the appellant had a sexually abusive relationship with each of his four daughters" being a tendency to treat all of his female children in a sexually abusive manner. In my opinion, the evidence of the four complainants was admissible on that basis, however, this aspect was not pressed and the jury was instructed to treat the evidence with regard to each complainant separately. 42 In addition, the commonality of the evidence included the letter, Exhibit "F", which referred to the daughters, and, as pointed out by counsel for the respondent in his submissions, the appellant made admissions in the presence of the complainants [M] and [D] and other admissions in the presence of complainants [J] and [M]. 43 No miscarriage of justice has been demonstrated by virtue of the fact that a joint trial was held with regard to the four complainants. Ground 1 is accordingly not made out. Ground 2 - The admission of evidence of complaint led to a miscarriage of justice; and Ground 9 - His Honour erred in his directions as to evidence of complaint 44 I have had the benefit of reading in draft, the judgment of Simpson J with which I respectfully agree. For the reasons given by Simpson J, these grounds of appeal are rejected. Ground 3 - His Honour erred in admitting into evidence in an unedited form, a letter written by the appellant to his former wife (Exhibit "F") 45 The letter, Exhibit "F", was tendered during the course of evidence given by the appellant's former wife, MJS. It had been received by her on 20 December, 1995. 46 A general objection was taken to the tender on the ground of prejudice. 47 Counsel for the appellant concedes that the letter acknowledged that the appellant had a "bad passed (sic)" and that he was sorry his daughters were having to face something which apparently related to his bad past. Hence the letter was of probative value and, it is conceded, ought to have been admitted. 48 On the third page of the letter, appears the sentence "Policeman just call about any wrongdoing". The appellant contends that this sentence should have been edited out. 49 It is common ground that the sentence in question referred to an unrelated matter. In the context of the letter, the meaning of the words in question was obscure. 50 In cross-examination of the appellant, the Crown Prosecutor pursued the question of whether, at the time he wrote the letter, Exhibit "F", the appellant was aware that any of his daughters had contacted police. This was a perfectly proper line of enquiry. 51 The appellant mistakenly said that he had been informed of the relevant allegations about a fortnight before he was spoken to by the investigating police officer, Detective Grech, on 11 January, 1996. It seems plain that this response prompted a question from the jury in the following terms:- "The members of the jury are not clear about the claim by Mr [S] that he did not know anything about the sexual abuse charges against him prior to writing the letter, yet there is a reference to a policeman approaching him about wrong-doings on page 3 of the letter. Could some clarification be given on this point, please? Thankyou." 52 In the absence of the jury, the answer which the court should give to this question was fully ventilated in discussion between counsel and the trial judge. During the course of this discussion, it was established that the appellant was mistaken in his recollection as to timing, that is to say when he first learned of the allegations by his daughters in relation to the time of writing the letter. 53 On return of the jury, the trial judge apologised for the delay and then read to the members of the jury their question and said:- "Members of the jury, the position is this, it is common ground between the parties that at the time he wrote the letter Mr [S] was not aware that statements had been made to police by [D] and [M]. And there was some evidence given this morning which might've tended to confuse that position, but it is common ground between the parties that what I have just said is the position. So far as the reference made to the top two, and perhaps three lines on page 3 of the letter, what I direct you to do is to ignore that entirely, and not to speculate about what that may relate to. It is not relevant to these proceedings. You should not speculate, as I say, about it, and it is not a matter that is relevant to these proceedings." 54 It is to be noted that when the letter, Exhibit "F", was tendered and the general objection taken to it, the trial judge gave reasons for its admissibility. At that time no request was made to edit out of the letter the sentence about which complaint is presently made. 55 In the circumstances, the direction given by the trial judge in answer to the question asked by the jury, was adequate and no miscarriage of justice resulted from the inclusion of the sentence in question, as qualified by the judge's direction, remaining in the letter. Ground 3 should be rejected. Ground 4 - The admission before the jury of evidence as to motives of the appellant's former wife for leaving him gave rise to a miscarriage of justice. 56 On behalf of the appellant, it is submitted that the motives for the appellant's former wife leaving him were not relevant and this evidence should not have been led, being prejudicial in nature. It is further submitted that this evidence tended to place the appellant in a poor light, indicating the determination of the complainants to have nothing to do with him, the evidence suggesting, so the submission runs, that the appellant's former wife accepted the complaints as being well founded. 57 No objection was taken to the leading of this evidence and no direction was sought by trial counsel for the appellant with regard to it. 58 In her evidence, the appellant's wife gave as her reason for leaving the appellant "Because my daughter [J] spoke to me on the phone, saying 'Mum if you want to see your daughters and grand children, you've got to get out' and that's what I done." (T.172.50) This evidence did not necessarily involve acceptance of the complaints made by the daughters. The antipathy between the complainants and their father was patently obvious at the trial. MJS had made no complaint to police about her husband's conduct with regard to their daughters and in fact her evidence was to effect that she was hurt (when told by the daughter M) and dumbfounded when asked by the daughter [J] if she knew that "… dad touched us". 59 The evidence complained of did not necessarily involve acceptance of the complaints made by the daughters and could not be said to have brought about a miscarriage of justice. 60 Ground 4 should be rejected. Ground 5 - His Honour erred in refusing to discharge the jury following the disclosure by Detective Grech of the fact of the making of a complaint of sexual assault against the appellant by Christine Purins 61 In his evidence in chief, the police officer, Detective Grech, said that in January 1996 he caused statements to be obtained from [J], Christine Leslie Purins and [S]. He said further that on Wednesday, 7 February of 1996, accompanied by another police officer he spoke to the appellant in the driveway of his home and said to him, inter alia, "Harold, I need to talk to you further about further allegations of sexual assault made by [J], [S] and Christine Purins. I believe you know these people". He said, "Yes, I know them". I said, "Mr [S], you're under arrest for the sexual assault upon these females." 62 Shortly after this passage of evidence, the Crown Prosecutor drew to the court's attention the mention of the name of Christine Purins, who was not a complainant in the proceedings on foot. The Crown Prosecutor took responsibility for failing to warn the police officer to tailor his evidence to the indictment. 63 Counsel for the appellant sought the discharge of the jury. His Honour refused that application, holding that "… the name will have no significance whatever to the jury". 64 It is submitted, on behalf of the appellant, that the matter was one of significance and that the jury would not have forgotten the mention of Ms Purins' name and that this was reinforced by the blank spaces which the editing of Exhibit "J1", the transcript of the record of interview between police officers and the appellant on 7 February, 1996 disclosed by virtue of the blank spaces where Christine Purins' name had been removed. 65 The error in the police officer's evidence, for which the Crown Prosecutor accepted responsibility, was unfortunate. It was not, however, in my opinion, an error incapable of rectification by directions from the trial judge to the jury to ignore and put out of their consideration the name of the person inadvertently mentioned. 66 In the present case, when offered the alternative of either having an appropriate direction given or the matter allowed to rest, counsel for the appellant, not surprisingly, elected the latter course. 67 Upon resumption of evidence before the jury, the police officer confined his evidence to the two complainants [J] and [S], the appellant's daughters. 68 The question is whether the failure to discharge the jury resulted in a miscarriage of justice - Maric -v- The Queen (1978) 52 ALJR 631. 69 In R -v- Marsland (NSWCCA - unreported - 17.7.91) a significantly more serious error occurred than in the present case. An exhibit was tendered on which the heading made reference to alleged sexual misconduct on the part of the appellant, not only against the complainant but also against another lady. 70 The trial judge directed the jury to "cross it out of your minds", it being an error which had nothing to do with the case Gleeson CJ, with whom Lee CJ at CL and Hunt J agreed, categorised the inclusion of the irrelevant reference as an irregularity. In rejecting the ground of appeal Gleeson CJ noted:- "It is to be borne in mind that there was nothing else of any kind before (the jury) that would have given them any indication of, or even a hint as to who (the second lady) might have been". 71 The decision is apposite in the present case. 72 In R -v- Oliviera (NSW CCA - 26.11.93 - unreported), a case involving inadvertent introduction of inadmissible evidence of bad character, Abadee J, with whom Clarke JA and Grove J agreed, at p 8 adverted to the advantages enjoyed by the trial judge in assessing the jury's capacity to accept directions of law. Whilst not directly on point in the present case, where no directions were given, the reasons given by Abadee J do emphasise the advantageous position the trial judge enjoys in assessing the impact of the erroneous, albeit inadvertent disclosure. Some support for the respondent's submissions on the question of the impact of the evidence is to be found in the election of trial counsel for the appellant not to have his Honour give directions to the jury and to let the matter lie. 73 There was, in my view, no miscarriage of justice resulting from refusal of the application to discharge the jury. Ground 5 is not made out. Ground 6 - The admission into evidence of the record of interview between the appellant and police dated 7 February 1996 gave rise to a miscarriage of justice (Exhibits "J" and "J1" 74 On behalf of the appellant, the submission is made that the interview between Detective Grech and the appellant on 7 February 1996 elicited no admissible evidence. This exhibit, which included the transcript of the ERISP, was admitted by consent. Counsel later sought a voir dire in support of an application to have Exhibit "J", the ERISP and its transcript, Exhibit "J1", withdrawn from the jury. 75 Following the tender of Exhibit "J" and the provision of the transcript of that ERISP, that is to say Exhibit "J1", the ERISP video, Exhibit "J", was played to the court. Accordingly, the jury had before them the transcript, Exhibit "J1", and had heard and seen the video-taped record of interview of 7 February, 1996, Exhibit "J", played to them in court. When the video tape was three quarters of the way through, the court, on 27 May, 1998 was adjourned until 10 o'clock next day. 76 It would appear from the transcript that the next day, Thursday, 28 May, 1998 the commencement of proceedings was delayed while defence counsel made an application to have the balance of the video tape and its transcript withdrawn from the jury. It would seem that throughout this period of delay, the jury had with them in the jury room the transcript being Exhibit "J1". 77 The transcript does not make it clear precisely when the jury was released, being requested to return at 1 o'clock, however, it would seem that the voir dire of the police officer, Detective Grech, commenced at 10.47 am on Thursday, 28 May. 78 The application made by trial counsel for the appellant to have the ERISP, Exhibit "J", and the transcript, Exhibit "J1", which had been admitted by consent, withdrawn, when the video-tape was three quarters through playing, and the transcript had been, for a considerable time, in the hands of the jury, was a most unusual application which, if granted, could only have resulted in confusion on the part of the jury. 79 The trial judge acted appropriately in his endeavours to avoid the jury becoming confused in this fashion. The issue is whether the ERISP, Exhibit "J", and the transcript, Exhibit "J1", by remaining as exhibits before the jury, unfairly prejudiced the appellant's trial. For my part, I am far from persuaded that this was so. 80 The appellant consistently maintained throughout the interview his innocence and took the opportunity to record his criticism of police tactics as to the manner of his overall questioning. 81 The appellant's right to silence was the subject of unexceptional directions to the jury by the trial judge in this regard and there was no breach of S 89 of the Evidence Act, 1985. Ground 6 should be rejected. Ground 7 - A miscarriage of justice was occasioned by the cross-examination by the Crown of the appellant concerning the credibility of Crown witnesses 82 The submission in support of this ground of appeal relates to the cross-examination of the appellant by the Crown Prosecutor, the contention being that a line of cross-examination whereby one witness is invited to express an opinion about the truthfulness of another, ought not to be pursued, a fortiori, where the witness is the accused. 83 The evidence complained of commences at transcript 306 where the question was asked, concerning the complainant [J], whether the appellant had admitted to her that he had had sex with her but denied having sex with the other girls. The appellant denied this. It was further put to him the question:- "Q. And I suggest to you that she [J] said to you 'I know that you did it to [M] now'?" A. No that did not come up in any conversation with us at all. Q. I suggest to you that you denied having sex with [M] and she said -- A. I definitely denied having sex with [M] and I still do. Q. 'But I know you did it to [M]'? A. Well that was never ever brought up. All these things they've - I'll you what, they've definitely got together, very much so and put this all down and it proves itself one way and another." 84 The appellant then was asked about what he meant by the words "they've definitely got together" and gave evidence of collusion between his daughters to "pin this on me". He was then asked the question:- "Q. Mr [S], just listen to the question, why do you think your daughters got together and made this up? A. This is exactly what I'm saying, I do not know, I've not been able to work this out myself at all. I can't figure it out, one bit of it. I can't understand any of it's about. It just seems so stupid to me the way that they've done it." 85 The appellant was then asked questions about his knowledge of the reason why his family had fallen apart at the time when he wrote the letter, Exhibit "F". 86 He was asked the question:- "Q. And you knew at the time when you were writing this letter that the family had fallen apart because of the sexual abuse you'd perpetrated upon your daughters? A. I referred to it in this letter that I expected the family to fall apart, not had fallen apart, but would fall apart because of the wife had gone and left me. Yes, I referred to that -- Q. When you realised your wife had, in fact, left you --? A. Yeah. Q. -- What did you understand was the reason for her going?" 87 The appellant then gave an answer in which said that he did not know why she had left, intimating that it had been a good marriage without arguments or disagreements and expressing his belief that they were a loving family. 88 At T. 352 the appellant was cross-examined about the statements made by his daughter [J] in her evidence, with which he had taken issue. He was asked the question:- "Q. Mr [S] do you say that what [J] said in the witness box about that conversation with you was a lie on [J's] part? A. No, I didn't say that. Q. Well what do you say about her evidence? A. I just told you exactly what happened, and that was it. Q. You do not agree -- A. There was no further -- Q. You do not agree that [J] confronted you about your sexually abusing her -- A. I did -- Q. – and asking you why? A. I did agree that she did confront me in that respect and about [M], and I told you that was all that was said. And then I, we had a little bit of a talk with each other and not about that, that whatever was going on, just an ordinary conversation, and then we were called over to the bar-b-que next door and we went over there to a bar-b-que. There -- Q. Let me ask you -- A. – Was no conversation. Q. – again. Why do you think [J] asked you that question? A. I don't really know, to be honest. I don't really know." 89 At transcript 375 the appellant was asked in cross-examination if the evidence given by the four complainants was fabrication and he said in each case that it was. He was also asked whether some evidence given by his wife was a fabrication to which he also responded in the affirmative. He was then asked the question (T.376):- "Q. And you are the only person in this court telling the truth, is that what you believe? A. Well it seems that way to me." 90 For the appellant, reliance is placed upon the decision of this court in R -v- Rich (1998) 102 A Crim R 165. In that case the cross-examination of the appellant focused on the conflict between the appellant's evidence and that of Crown witnesses. He was questioned as to whether he was suggesting that those witnesses were lying. Hidden J expressed the view that this was analogous to cross examination of an accused in a case of alleged sexual misconduct as to whether he could attribute any motive to the complainant to fabricate evidence against him, which he identified as a practice condemned in a number of decisions of this court and more recently by the High Court in Palmer -v- The Queen (1998) 193 CLR 1. 91 The authorities relevant to this issue were comprehensively considered at some length by Adams J, with whom Spigelman CJ and Studdert J agreed, in R -v- Baker (1999) NSW CCA 277 - unreported). The Court there considered the decision in R -v- Rich (supra). At para. 32 of his judgment, Adams J said this:- "The mere fact that counsel for the accused puts to a witness that he or she is lying will not justify a cross-examination of the accused by the Crown Prosecutor calculated to deflect the jury from an objection consideration of the two issues in the case by attempting to elicit from the accused the opinion that the witness is lying. As was said in R -v- Leak (1969) SASR 172 the opinion of the accused is irrelevant. I am of the view that the questioning of each of the accused by the Crown Prosecutor which I've quoted was improper and impermissible as was conceded in this court by Mr Birman for the Crown. It was, in reality, commentary directed to the jury rather than cross-examination designed to test the witness's evidence. Even so, I think it may fairly be seen as having been instigated by the attacks (quite properly) made on the Crown witnesses by counsel for the accused and fairly represented their cases. The question remains, however, whether in pressing for the irrelevant opinions the appellant was unfairly prejudiced. In the circumstances of this case, this question could be recast into the form: Did the impermissible questioning have a real or perceptible tendency to deflect the jury from properly considering the issues in the trial, having due regard to the onus and standard of proof and, in particular, fairly evaluating the evidence of and the case made by the appellant?" 92 The question as recast by Adams J in the above quotation is in my respectful opinion apposite to the present case. 93 With the exception of the last series of questions, it is necessary to consider the passages of evidence in the context in which the various issues arose. The subject of cross-examination was the letter, Exhibit "F". The questioning was important and appropriate. It was not the subject of objection. 94 The series of questions in which the Crown Prosecutor asked the appellant as to whether the four complainants and their mother were fabricating their evidence, leading to the question "Q. And you are the only person in this court telling the truth is that what you believe?" was an impermissible approach on the part of the Crown Prosecutor, which invited opinion evidence from the accused. It was irrelevant and the questions should not have been asked. Nevertheless, this evidence, in my opinion, did not have a real or perceptible tendency to deflect the jury from properly considering the issues in the trial, having regard to the onus and standards of proof and upon a fair evaluation of the evidence and of the case made by the appellant. I would reject this ground. Ground 8 - His Honour erred in permitting the Crown to lead evidence in reply. 95 In unresponsive answers to questions in cross-examination, the appellant made allegations variously described as concoction and collusion between the complainants [M] and [J]. He also suggested that the complainants may have been motivated by a desire to claim compensation. 96 In giving judgment on the separate trial application, Karpin DCJ held that collusion had not been raised as a real possibility. In cross-examination of the complainants, neither concoction nor collusion was raised. 97 An application was made by counsel for the appellant to recall the complainants to put collusion to them. The trial judge acceded to this request, limiting further cross-examination to that issue, however, on instructions, the application was withdrawn. 98 The short case in reply was confined to the complainant [M], who gave evidence of going to the police after speaking to her aunt and of the police contacting her sisters. She said further that she had no thought of compensation and was unaware of its availability. 99 In the case of Tillick -v- The Queen (1981) 147 CLR 565, upon which the appellant relies, evidence countervailing the accused's alibi evidence was held to have been improperly admitted in reply in circumstances where the accused, in two prior proceedings had given evidence of his alibi. That case is clearly distinguishable on the facts in the present case. The need to call evidence in reply arose purely from the unresponsive answers of the appellant in cross-examination. The evidence in reply was not improperly admitted. Ground 8 is rejected. Ground 10 - His Honour erred in his directions as to the treatment by the jury of delay in the making of complaints and the prosecution of the alleged offences. Ground 11 - His Honour erred in his directions concerning matters alleged by the Crown to "confirm or tend to confirm" the allegations of the complainants. 100 It is argued, on behalf of the appellant, that his Honour having invited the jury to look for independent evidence, not coming from the complainants, which tends to confirm the appellant's commission of the offences, that he then directed the jury to consider a series of matters which would not assist in that regard, being more in the nature of ordinary parental expressions of affection and domestic activity. 101 The matters which were the subject of this ground of appeal are set out in the trial judge's summing up between pages 13 and 22. 102 In this part of the summing up, his Honour was identifying matters, which in the Crown submission, the jury could look to to confirm or tend to confirm the alleged offences. His Honour was at pains to point out that it was a matter for the jury to decide whether the Crown's argument was to be accepted in this regard (S/U 13.5). 103 Reference was then made to the letter, Exhibit "F", and certain sections of the appellant's record of interview, Exhibit "G1", being the transcript of the recorded interview. 104 Section 164 of the Evidence Act, 1995 abolishes the requirement for corroboration. Accordingly, a direction in this regard was not necessary. In any event, no complaint is made of the direction on corroboration given by the trial judge. 105 With regard to the evidence concerning the actions of the appellant towards his daughters, the trial judge said at S/U 21:- "Now members of the jury, it is a matter for you to assess what weight you give to that evidence. You may think that it is neutral, that it could be the act of a loving father who is merely relating to his children in the way that is described. And in the course of that, in relation to every specific sexual assault that is alleged he denies that he committed it." 106 No complaint was made by trial counsel as to this aspect of the summing up. Strictly speaking, the appellant needs leave to raise this ground. However, in any event, in my opinion, there has been no miscarriage of justice and these grounds should be rejected. Ground 12 - His Honour erred in his directions concerning an alleged admission by the appellant. 107 The basis for this ground of appeal is not clear. The evidence of the complainant [D] at transcript 25/26 related to a conversation which the complainant [D] gave evidence of having with the appellant. The Crown relied upon this conversation as constituting admissions on the part of the appellant. 108 At transcript 118-119 the complainant [M] gave evidence of a conversation she had engaged in with the appellant, in which it was alleged he had said, inter alia, "Oh no, no, I don't think that's right, you girls wanted that as much as I did, you girls wanted the cuddles it wasn't just me". This was a conversation in which [M] was saying to the appellant that he should transfer the Housing Commission home, which the parents were not occupying, to the complainant [D] in which the appellant is alleged to have said "Well what are you girls going to do for me if I do that?" to which [M] gave evidence that she had replied "I think we have already paid for that, I think you should do it, I think you should owe us a lot more than this. Anyway, you should do it because of the things you've done to us as children". 109 In his directions, the trial judge made it plain that the weight the jury members were to place upon this evidence was a matter for them. No complaint was made about this aspect of the summing up by trial counsel, leave is accordingly required. However, in any event, no miscarriage of justice has been demonstrated and this ground should be rejected. Ground 13 - His Honour erred in his directions in relation to the jury's treatment of the issue of consumption of alcohol by the appellant 110 This ground is without merit. In his record of interview of 11 January, 1996 the appellant was asked at:- "Q.115 All right. Mr [S], are you able to tell me if - if you are - were at any time an alcoholic? A. Yes, I was. Q.116 Any are you able to tell me - A. I was a real bad alcoholic at one stage." 111 He later said that following a drunken driving charge he had given up drinking and that was probably in about 1986 or 1987. This evidence was before the jury and there was in addition a significant amount of evidence on the issue of whether or not the appellant had been under the influence of alcohol and been unaware of his conduct towards the complainants. 112 The appellant did not rely on a defence based upon his consumption of alcohol or the effect it had upon him. 113 The trial judge felt constrained to give directions to the jury on the question of intoxication. 114 In summing up at p 23/D2 his Honour said:- "Normally it is obvious from the nature of the allegations that if the acts were done by the accused they must have been done voluntarily and intentionally. It was not suggested by counsel for the accused that the question of alcohol in fact or intoxication was a matter which he addressed to you. It is not suggested that that was an explanation for any misconduct. But because of the evidence, part of which I have already referred to, about alcohol and intoxication and what the accused said in his evidence was the effect on him of alcohol, it is necessary for me to give you this direction." 115 His Honour proceeded to give an unexceptional direction on alcoholic intoxication to which no objection was raised. In R -v- Stokes and Difford 51 A Crim R 25 it was held that the trial judge must leave the issue (of intoxication) with the jury when it arises on the evidence as one which must be considered by the jury. This is so even if defence counsel, for reasons of strategy, does not wish to raise it. His Honour was right to follow the course which he did. This ground of appeal fails. Ground 14 - His Honour erred in his directions in relation to the jury's treatment of lies allegedly told by the appellant 116 The appellant contends that the directions given by his Honour on the issue of a lie relied upon by the Crown as showing consciousness of guilt, were confusing to the jury. 117 The lie alleged turned upon whether the appellant had an alcohol problem in 1995 when he wrote the letter, Exhibit "F", the implication being that at that time, he had not had any such problem for many years but was seeking to embrace such a problem to explain away his "bad passed" (sic) and "wrong doing" referred to by him in Exhibit "F" the letter to his wife. 118 The appellant had given evidence in chief in which he sought to explain his wrong doing and loss of the love of his daughters and his bad past in terms of alcohol and gambling problems. He claimed to still have an alcohol problem, albeit reduced, at the time of writing the letter, Exhibit "F", in December, 1995. This was in direct conflict with his statement in his ERISP of having overcome that problem in 1986. 119 The directions on lies given by his Honour were in what might be said to be conventional form. They could perhaps have been better tailored to the facts of the case, but they certainly embodied the caveats upon which the jury were required to be directed. No objection was taken to the directions at the trial. 120 There was no miscarriage of justice. This ground should be rejected. Ground 15 - the convictions of the appellant constitute miscarriages of justice 121 The appellant contends that by reason of individual errors, as well as a concatenation of errors, the appellant's convictions constitute miscarriages of justice in the sense discussed in R -v- Clough (1992) 28 NSWLR 396 @ 407-8. Further support is sought from what is said to be unnecessary directions as to the relationship evidence concerning other offences not charged; the existence of guilty passion and his Honour's cross-examination of the appellant at transcript 376-7. 122 The Crown led evidence of the relationship between the appellant and the complainants in the nature of background to the offences charged. No objection was taken to this evidence being led. The directions given by the trial judge were consistent with incidents of a sexual nature, which were not the subject of specific charges, being no more than background evidence to the events which were the subject of charges. The directions were not the subject of objection and no redirection was sought. In the circumstances, the directions given by his Honour were not inappropriate. 123 The questions asked of the appellant by the trial judge were confined to what the appellant intended to convey by what was written (and unwritten) in the letter, Exhibit "F". The questions asked did not amount to the entry into the arena by the trial judge and no miscarriage of justice resulted. 124 The hearing of the trial extended over sixteen days, of which nine were hearing days. The four complainants gave evidence and were cross-examined at length. The evidence of the accused occupied over one hundred and fifty pages of transcript. The summing up to the jury was one hundred pages or so in length. The appellant in giving evidence was given to making non-responsive speeches. He had to be brought back to the question time and time again. I mention these statistics to illustrate that it was not an easy trial to manage. 125 It is a rare trial indeed which, when subjected to scrutiny, can withstand every criticism. The standard is not one of perfection, the test must always remain whether justice miscarried. 126 In my opinion, the grounds of appeal raised in this case, neither in isolation nor concatenation demonstrate a miscarriage of justice. 127 I would dismiss the appeal. **********I N THE COURT OF CRIMINAL APPEAL 60361/98 SPIGELMAN CJ IRELAND J SIMPSON J Friday, 9 June, 2000 REGINA v HJS JUDGMENT SIMPSON J : 128 I have read, and agree with the judgment of Ireland J in relation to those grounds of appeal his Honour considers. In relation to the grounds of appeal concerned with the issues raised by the evidence of complaint, I have reached the following conclusions. Complaint 129 Two grounds of appeal concern the evidence of complaint. By ground 2 it is asserted that the admission of evidence of complaint led to a miscarriage of justice. By ground 9 it is asserted that the trial judge erred in the directions he gave to the jury in relation to that evidence. 130 Considering the number and breadth of the allegations, the period of time over which the offences were alleged to have been committed, the number of alleged victims, and their relationship to one another and to the appellant, the evidence of complaint was very limited indeed. What follows is an account of the evidence that was admitted as evidence of complaint although it is probably more accurate to describe it as the evidence of assertions made at any time prior to the trial, by any of the complainants, of sexually improper behaviour by the appellant. I shall, however, continue to use the term "complaint". In each case, the complaint is framed in the most general of terms. In three cases, the complaint was directed to the appellant himself. The evidence amounted to the following: Complaint by D (i) D said that she spoke to her older sister, M, when M was about sixteen and D was about ten. She said she used to scream and misbehave when M went out. On one occasion when M was going out with friends and D behaved in this way M asked her why she did so and whether it was because of their father. M asked D if their father had touched her, if he had hurt D, and if he made her feel uncomfortable. To this D said that she replied that the appellant "hurts me and he has penetrated me and such". It is not possible from this evidence to discern even an approximate time of the alleged events to which D was referring. The evidence given by M about the conversation was different. She said: "I remember asking [D] if my father was hurting her and [D] answering her with a puzzled look and no knowing, [D] looking with a puzzled look and then me asking her, pressuring her more, 'tell me, what are you trying to say?' and then I asked her 'What, has he touched you, has he done something like that?' And then she said 'No, not that' and I asked her whether he penetrated her and she said no." (T115) (ii) Years later, when D was seventeen or eighteen, the appellant was about to surrender his Department of Housing accommodation. M and D approached him with a view to persuading him, rather than surrendering it, to make it available to D. D could not, at the time of giving evidence, recall what had been said, but said that, whatever it was, it prompted a reply from the appellant to which she deposed in the following terms: "He said that because we went and sat on his lap, he took that that we wanted to be sexually abused, that we wanted to be touched and fondled." (T26) The jury was invited to infer that whatever D had said to provoke this response amounted to an assertion of previous sexual misbehaviour. Complaint by M (iii) M gave evidence about what is probably the same occasion. She said that during the discussion about the transfer of the house, the appellant asked what the complainants would do for him in return if he complied with their request. M said: "I think we have already paid for that, I think you should do it, I think you owe us a lot more than this. Anyway you should do it because of the things you've done to us as children." (T119) (iv) M, who was born in 1966, gave evidence that "during [her] teenage years" she told her particular friend, Vanessa Sherwood, something of the events the subject of the charges. M said that she did this after an occasion in which she was confronted by her parents and Vanessa's mother with evidence that she had been using marijuana. She subsequently wrote Vanessa a letter. M was not very specific about the contents of the letter. The extent of her evidence on its content was: "…I wrote it in a letter to Vanessa then that afternoon before I left I put a letter under her clothes which were stacked on the end of her bed and in that letter it said that my father had molested me and that was some of the reasons why I acted the way I did." (T118) (v) Vanessa, who gave evidence under her married name, Forsack, confined herself to agreeing that the letter had been written and that the word "molesting" had been used, but was no more explicit about the specific terms of the letter. (vi) When she was aged about twenty-five M was making arrangements to live away from her parents' home. She suggested to her mother that she and the other children might all move out together, but her mother declined. M became annoyed and asked if her mother knew why she was moving out and her mother replied that she had "a pretty good idea". M told her mother that it was because the appellant had been molesting her. Complaint by J (vii) J said that the first person she had spoken to was a friend with whom she had recently (at the time of giving evidence in May 1998) been travelling overseas. J did not give any detail of what she had said to her friend, and nor did she identify the friend, who was not called as a witness. (viii) J was asked if she had told anybody about the incident in the toilet, the subject of count 6. She said: "No, I remember probably mentioning it to someone, I don't remember who I ever mentioned it to at any stage though, no." (T136) (ix) J gave evidence (which was admitted both as evidence of complaint and of admission by the appellant) of confronting the appellant at his home, then at Pacific Palms. This occurred in 1995, when she had travelled to Pacific Palms with M. J said that she demanded to be told why the appellant had behaved as he had. The words she attributed to herself in recounting the confrontation were: "Why did you do it?" (T137) 131 There was no evidence that S had made any complaint prior to making her statement to police. 132 When the times (so far as they can be approximated on the evidence) of the various complaints are related to the time or dates of the counts alleged in the indictment, it can be seen that there was nothing like immediate or prompt reporting of the events in question to anybody. The complaint by D to S was made when she was about ten. D was born on 8 February 1972. The offences relating to her were alleged to have been committed between February 1978 and 1979 when she was six (counts 7 and 8), between February 1980 and February 1982 when she was between 8 and 10 (count 9), and between February 1983 and February 1984 when she was eleven (count 10). At best, therefore, her complaint to M related to events she alleged had occurred a year earlier. Her subsequent complaint, to the appellant himself, was made when she was seventeen or eighteen, the most recent events allegedly, having been committed when she was eleven, six or seven years earlier. 133 M was born on 18 August 1966. The three offences charged in relation to her were alleged to have been committed between January 1970 and August 1974, when she was between four and eight. Her complaint in writing to Vanessa was made "in [her] teenage years"; probably (on Vanessa's evidence) when she was about sixteen. It therefore related to allegations of events said to have occurred ten years earlier. The conversation with her mother was another nine or ten years later. 134 J's complaint to her travelling companion was made sometime "recently" as at 1998. The events giving rise to the two counts that related to her were alleged to have occurred between April 1970 and April 1973, and between April 1977 and April 1978 respectively. It is impossible to know precisely what complaint she made to her friend, and whether what she said referred specifically to either or both of these allegations. In any case, the time that had elapsed since the events of which she spoke was anything from about twenty to almost twenty-eight years. 135 The complaint made to the appellant by J was made in 1995, anything from about twenty to twenty-five years after the events the subject of the allegation. Evidence Act 1995, s66 136 In these circumstances, it is hardly surprising that, in the light of the decision in the High Court in Graham v R [1998] HCA 61; 195 CLR 606 (delivery of which post dated the appellant's trial), the Crown concedes that the evidence was probably not admissible under s 66 of the Evidence Act 1995. The evidence was tendered and admitted (without objection) in accordance with the prevailing pre-Graham orthodoxy in relation to evidence of complaint. Since the Crown does not press the admissibility of the evidence the reasons for its inadmissibility can be shortly stated. It was sought to be admitted under s 66 of the Evidence Act which provides: 66 Exception : criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. (3) If a representation was made for the purpose of indicating the evidence that the person who made it would be able to give in an Australian or overseas proceedings, sub section (2) does not apply to evidence adduced by the prosecutor of the representation unless the representation concerns the identity of a person, place or thing. (4) A document containing a representation to which sub s (2) applies must not be tendered before the conclusion of the examination in chief of the person who made the representation, unless the court gives leave. 137 It is the test imposed by the phrase "fresh in the memory" that the complaint evidence in this case cannot meet. Until the High Court's reasons in Graham were published, the view of the phrase most commonly taken was that it connoted a qualitative, as well as temporal, test. An event of sufficient significance might remain "fresh in the memory" for many years, even a lifetime. That view is no longer orthodox. In Graham the majority said: "The word 'fresh', in its context in s 66, means 'recent' or 'immediate'. It may also carry with it a connotation that describes the quality of the memory (as being 'not deteriorated or changed by lapse of time') but the core of the meaning intended, is to describe the temporal relationship between 'the occurrence of the asserted facts' and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years." (para 4; internal reference omitted.) Their Honours proceeded to give a number of reasons for adopting that construction. 138 Callinan J, in a judgment in which Gleeson CJ concurred, said: "Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise will almost always be the most important consideration in any assessment of its freshness. The Court of Criminal Appeal took the view that the section laid emphasis on the 'quality' of the memory and in consequence, the regard that should have been paid to the delay in making the complaint was not paid. There may be cases in which evidence of an event relatively remote in time will be admissible pursuant to s 66, but such cases will necessarily be rare and requiring of some special circumstance or feature. It is desirable that s 66 be given such a construction not only for certainty but also to avoid as much as possible the delay and expense of voir dire hearings to explore questions of vividness and the like, with their attendant opportunities for the rehearsal of cross-examination and evidence." (para 34) 139 Having regard to the dates and times of the complaints (so far as they can be ascertained) and the dates and times of the events the subject of the charges, the decision in Graham renders inevitable a conclusion that the evidence was wrongly admitted under s 66. It does not, however, necessarily follow that the evidence was not admissible in an alternative way: see paras 142 to 160 below. 140 I would add that it is, in my view, no longer necessary and may even be misleading to treat evidence of complaint in sexual cases as a discrete entity, or separate species of evidence. Subject to meeting the test of freshness (and subject also to any discretionary exclusion or limitation pursuant to ss 135, 136 or 137) the evidence is (where the maker has been or is to be called to give evidence) admissible under s 66 as an exception to the hearsay rule and as evidence of the truth of the fact or facts asserted: R v H (1997) 92 A Crim R 168; R v BD (1997) 94 A Crim R 131. 141 No objection having been taken at the trial the appellant needs leave under Rule 4 of the Criminal Appeal Rules to argue the point. Such leave should be given. Evidence Act s 108(3) 142 There is an alternative basis on which the evidence of the accounts given by three of the complainants to others may have been admitted. S 108 is directed towards re-establishing the credibility of a witness in the circumstances set out in the section. Sub s (3) provides: "(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of prior inconsistent statement of the witness has been admitted, or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion, and the court gives leave to adduce the evidence of the prior consistent statement." ("The credibility rule" to which reference is made, is the rule contained is s 102, which provides simply that evidence that is relevant only to a witness's credibility is not admissible. S 108(3) is one of a number of express exceptions to that general rule.) 143 Two things are to be noted about s 108(3). The first is that it creates a threshold test of admissibility - the evidence is not admissible unless it has been, or is to be, suggested that evidence given by the witness has been fabricated or reconstructed or is the result of suggestion. Such a suggestion may be made in cross-examination of the witness, or in evidence given by an accused or by a witness called in the defence case. The second thing to note is that even when the threshold test has been met, the evidence remains inadmissible unless leave to adduce it has been given by the court. 144 The first question is therefore whether the cross-examination of any of the complainants should be construed as having suggested that her evidence was fabricated or reconstructed or was the result of suggestion. Counsel for the appellant argued that it should not. 145 It may in passing be observed that there were clear suggestions to the complainants that, if the behaviour of which they complained had occurred at all, it was at the hands of somebody other than the appellant. Those questions could be interpreted as suggesting mistaken identity, as distinct from fabrication, reconstruction, or suggestion (however unlikely mistaken identity may seem in the circumstances). 146 But there were, in addition, quite explicit suggestions of fabrication and collusion in cross-examination of each of the complainants. For example, D was asked a number of questions about the reason for her delay in reporting the matters to police. In particular she was asked these questions: "I suggest to you the reason for the delay in reporting to the police, is that the incidents didn't take place the way you have described?" … "… I would suggest to you that if the incidents took place in the way that you have described, that you would have told, firstly, your three sisters about them, during the time of the incidents or shortly after, do you agree with that?" … "I suggest to you that did not happen, do you agree with that?" 147 There were other questions in the same vein. Counsel's intention was made perfectly plain in a discussion that took place in the absence of the jury during the course of D's cross-examination. He said: "… I'm intending to, … ask or put to the complainant that she had a bad relationship with her father in her early teenage years as a result of her drug usage and his dislike for that usage. I'd also be suggesting it involved white powder and green vegetable substance. I'd be suggesting that in various locations in the house and the yard she had it growing and I understand it to be the green vegetable matter. There was a lot of antagonism between her and her father and of course - I'd also be suggesting that her boy friend at the time and I understand through the years between twelve and, possibly sixteen, was also a drug addict, as it were, and that she developed a strong dislike for her father because he opposed her on these areas…" (T34) 148 The questions that were asked following this statement were somewhat less robust than the statement would have suggested. Counsel did, however, suggest that to the extent that the relationship between D and the appellant was bad, that was as a result of the appellant's disciplinary methods. 149 In cross-examination of M it was suggested that her annoyance with the appellant stemmed from the issue about whether he would make the Housing Commission house available to D or not, and that M was in the habit of protecting D. She also was asked a number of questions about the delay in making any report to police and it was categorically put to her that there never had been any sexual abuse either of her or her sisters. Specifically it was also put to her that she was angry with the appellant as a result of friction between the appellant and her boyfriend, and, again, of the appellant's disciplinary methods. 150 It was put to J that the allegations she had made were untrue, and that she, too, disliked the appellant because he was a disciplinarian. Questions of the same kind were put to S. 151 All of these questions contained, in my view, clear suggestions of, at least, reconstruction, and, at most, fabrication. They alone opened the gateway for leave to be given to the Crown to adduce evidence of the complainants' prior consistent statements. 152 In his own evidence the appellant was even more specific. He said, inter alia: "… All these things, they've - I tell you what, they've definitely got together, very very much so and put this all down and it proves itself one way and another. … Well I reckon they've definitely got together to try and pin this on me, whether they think they can get a compensation or what from it, I don't know, I don't know where they've come with the idea from, I - whether they think that they can finish up being paid for that house that I built up at Kurrajong or what they've come up with an idea for there. I mean I worked for twelve years for the brother in law up there and he was going to pay me for that and I also built a house there so - and that's all I've got left in life. So whether they think they're going to get that, they can have it. As far as I'm concerned they - if that's all they want they can have it, I'll give it to them willingly. For God's sake, to come up with stupid things like this against me." (T307) 153 As I have observed above, the suggestions put to the complainants in cross-examination were sufficient to open the door provided by s 108(3)(b). It would thus have been open to the judge to grant leave to the prosecution to adduce the evidence of complaint in re-examination of the individual complaints. The position became much clearer when the appellant gave his evidence and made the assertions extracted above. Had there been no such suggestion during the cross-examination of the complainants, that evidence would have been sufficient to have enabled the judge to grant leave to the prosecution to adduce the evidence of complaint in a case in reply. This is so, even having regard to the well-known restrictions on a Crown case in reply in criminal trials: R v Shaw (1952) 85 CLR 365, R v Lawrence, (1981) 38 ALR 1; R v Killick (1981) 147 CLR 565; R v Chin (1985) 157 CLR 671; R v Chaney (1991) 99 ALR 360. 154 Although it would have been open to the judge to grant leave to the Crown to adduce the evidence, it was by no means a foregone conclusion that leave would have been granted either to adduce the evidence in re-examination of the complainants or in a case in reply. There are many considerations that affect the exercise of the discretion under s 108(3). As the majority in the High Court in Graham pointed out, the exercise of that discretion depends upon the effect of the evidence upon the witness's credibility - here (as there), the effect of the suggestion of fabrication or reconstruction. The High Court went on to say that (on the facts in Graham) it was by no means clear that the making of a complaint six years after the event would assist in deciding whether the complainant had fabricated her evidence. Here, of course, the complaints were, in almost all cases, made much more than six years after the alleged events to which they related. 155 The grant of leave under s 108(3) is dependent upon the establishment of a proper basis. A proper basis is the restoration of the witness's credit following the suggestion of fabrication, reconstruction or suggestion. Many factors will be relevant to the exercise of the discretion, including, in some cases, an assessment of the degree of ferocity of the attack on the witness's credibility and even its efficacy. Factors that are required to be taken into account (without excluding others) are set out in s 192. 156 While conceding that the admission of the evidence under s 66 was dubious, the Crown argued that its admissibility under s 108(3) cured any defect that its admission caused. This cannot be accepted. The argument confuses the separate concepts of admissibility and admission of evidence. While the evidence became admissible under s 108(3), that did not necessarily entail the conclusion that it would be admitted, for the reasons already given. Under s 108(3), admissibility does not finally determine admission. Further, even if the evidence were admitted, it would call for a different approach by the trial judge as to the use that could properly be made of it. S 60 suggests that, once admitted under s 108(3), the evidence could be used by the jury as evidence of the truth of what was said by the complainant whose evidence was in question. It would have been appropriate for the judge to give consideration to whether, pursuant to s 136, some limitation should have been placed upon the use that the jury could make of the evidence, for example, as going only to credibility, and not going to the truth of what was stated. That consideration would have been of particular importance in the present case. When regard is had to the lack of specificity and absence of concrete detail in the complaint evidence it cannot be concluded with any degree of confidence that leave would have been granted. 157 In my opinion the admissibility and potential admission of the evidence under s 108(3) provide no answer to the irregular admission of the evidence under s 66. It will be necessary to consider the consequences of that conclusion below. 158 There is, however, yet another basis on which the complaint evidence referred to in paragraph 2(ii), (iii) and (ix) was admissible. These were the complaints made directly to the appellant. His response to the first is set out in paragraph 2(ii). M's evidence of his response to the complaint set out in paragraph 2(iii) was: "…and then he said things like 'Oh no, no, I don't think that's right, you girls wanted that as much as I did, you girls wanted the cuddles, it wasn't just me' and then I told him that I think he's sick because we didn't want the cuddles, any children should just be able to cuddle their dad and not expect that sort of thing to happen. And we argued about that sort of thing for a little while and then he said that he would see what he could do, and we left." (T119) 159 J's evidence of the appellant's response to her complaint, set out in paragraph 2(ix), was: "…because I loved you so much - Oh, you were such beautiful kids. And that was what his answer was. I remember him saying, I remember - I asked him, you know, 'Did you do it to anyone else, did you do it to anyone else?' because it was news to me that it even happened to [M]. He said, 'No, no, I wouldn't have done it to anyone else, no I didn't do it to anyone else. You were the one who wanted it.' " (T137) 160 In each case the appellant's response was admitted as evidence of an admission, and properly admitted for that purpose. The accusation made to him by the complainant in each case was admissible to make his response comprehensible. The accusations, while not properly admissible under s 66, were properly admissible in this way. The directions to the jury 161 It is convenient now to turn to the second of the grounds of appeal that concern the complaint evidence. That is the ground that attacks the directions given to the jury in this respect. A number of criticisms were made. His Honour undertook an extensive and comprehensive review of the evidence of complaint and the arguments put to the jury by counsel in their addresses. Included in the review were repeated references to the delay in making complaint (where complaint was ultimately made) and the absence of complaint (where there was none) and the explanations given for the delay in or absence of complaint. 162 It is convenient here to set out some extracts from the summing up, although these should be treated as representative rather than comprehensive. The directions in relation to complaint cover many pages in the transcript of the summing-up. They commenced with a reference to the obvious delay in the making of complaint, and a brief summary of the evidence of complaint. His Honour then told the jury that there may be good reason for the victim of a sexual assault to hesitate before making a complaint or to refrain from making any complaint and that the jury should look at the circumstances against the background of the relationship between the parties. After making some other remarks his Honour then said: "It is, you may think, natural for a young girl to have difficulty in fully understanding what is happening to her when a sexual assault takes place and then in explaining later, perhaps years later, to anyone, what exactly happened to her or to give evidence about it in the strange and no doubt unfriendly atmosphere of the court room. It is by no means easy, you may think, for a complainant to describe the initiation and progress of sexual gratification with her by an adult male and especially her father if in fact it occurred, which began when she was a child of tender years and regularly persisted, according to her account, for a number of years." 163 His Honour then again referred in detail to the evidence of complaint, summarising what was said by each of the complainants. After some other directions, he then said: "If you accept the evidence that the complaints were made by the complainants, they can be used as evidence of the fact that the accused sexually assaulted the daughter who made the complaint. But with respect to each charge in the indictment you have to accept the evidence of each complainant with respect to that specific charge or charges relating to the complaint. You cannot say well I am satisfied beyond reasonable doubt that the accused sexually assaulted each of his daughters during their growing up years, therefore he is guilty of each charge. You must look at, for example, [D's] evidence and ask yourself with respect to each separate charge, am I satisfied beyond reasonable doubt that the accused did to [D] what she alleges she did and likewise with [M], [J] and [S]." 164 It is unnecessary to consider whether these directions were or were not appropriate for the pre-Graham era. Two particular criticisms are now made. The first is that the direction that the jury could use the evidence of complaint as evidence of the fact that the appellant had sexually assaulted the complainant amounted to an invitation to the jury to engage in an impermissible reasoning process in relation to specific counts. Although the point is of general application, it can be illustrated by reference to the complaint evidence relating to J. That was the evidence that, on a "recent" (as at the time of giving evidence) overseas trip, she had said something, not otherwise elucidated, to her travelling companion. The submission was made that in this direction his Honour was inviting the jury to reason that because J had told her companion that the appellant had abused her, that could be used by the jury to establish that that the appellant had in fact committed the specific offences charged in the third and sixth counts. 165 It is true (as set out above) that evidence of complaint, when properly admissible under s 66, can be received as evidence of the fact that an accused person did the act described in the complaint. Where the act described in the complaint can be seen by the terms of the complaint and the allegation before the jury to be the act the subject of the charge then a direction in the terms here given would be unexceptional. But that is not the case here. In not one of the complaints was any specific act described. Each was a complaint of sexual abuse or molestation in the most general terms. The generality of the terms in which each complaint was framed undermined the degree to which it could be said to give support to any specific allegation. Because of the generality of the terms in which each complaint was framed, the only practical use that the jury could have made of the evidence was to reason that if the appellant had behaved as alleged in the complaint, it was more likely that he had committed the specific acts the subject of the charges. The point may perhaps more clearly be stated by an illustration with reference to another of the complaints. Take, for example, the evidence of the complaint by D to M that the appellant had "penetrated me and such". D was about ten years of age at the time of the conversation. The specific counts relating to D were counts 7, 8, 9 and 10. Count 7 was an allegation of assault with an act of indecency, falling short of penetration. The complaint, therefore, could not be used to support that allegation. Count 10 was an allegation of assault with intent carnally to know C, again, falling short of an act of penetration, and also was alleged to have occurred when D was eleven, and therefore after the conversation in question. The complaint could, therefore, not support that count. It could best support either the allegation contained in count 8 or that contained in count 9, each of which was an allegation of carnal knowledge that pre dated the conversation. The statement made by D to M (assuming, of course, that the jury accepted the evidence) was capable of supporting either of those charges, or indeed both, but, obviously care needed to be taken to avoid the substitution of that evidence for specific evidence of a specific occurrence. The directions given by the trial judge at the end of the paragraph quoted were sufficient to draw to the jury's attention the need for care of that kind. 166 The second criticism that was made of the directions relates to the passage extracted above at paragraph 162. The criticism was simply that, as none of the complainants had given evidence about the difficulty she experienced in describing the conduct she alleged, the directions left the jury: "with an inaccurate and highly prejudicial impression which had no foundation in the evidence led in the case". 167 I would reject this criticism. It is, as his Honour suggested to the jury, a matter of common sense and common experience that young children the subject of sexual abuse might find it difficult to describe that sexual abuse and that might well explain the delay in reporting the conduct to anybody in authority. In my view the direction was valid and correct. 168 The overall difficulty with the directions given, and the subject of the third, and major criticism, is that they were given on the basis that the evidence had been admissible and admitted under s 66. No directions were given that were appropriate to the admission of the evidence under s 108 (3). As I have observed above, it is by no means certain that the evidence would have been admitted under that subsection had the correct position in relation to s 66 been appreciated. The question which now arises is whether any miscarriage of justice has been demonstrated. This calls for an evaluation of the importance the complaint evidence assumed in the trial. Certainly, in mathematical terms, it occupied a substantial portion of the summing up, but the answer to this question depends upon a proper appreciation of all of the evidence in the trial. It can be seen, from the evidence outlined above, that the evidence of complaint was vague and unspecific and invariably unrelated to any of the specific charges. Despite the attention paid to it in the summing up, it is not evidence that could be taken to have affected the jury to any substantial degree. Taken in conjunction with the other evidence, it was of relatively minor import. What may be taken to have been more compelling were the direct accounts of repeated sexual abuse given by each of the appellant's four daughters, the accounts of three of them of accusation made directly to the appellant, and his subsequent incriminating responses. 169 In the circumstances, although I am satisfied that the evidence was wrongly admitted under s 66, and may not, had the proper tests been applied, have been admitted under s 108(3), and even if it had been, would have called for directions different to those which were given, no miscarriage of justice has occurred. I would reject the grounds of appeal concerned with the evidence of complaint. ********** 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.