New South Wales Court of Criminal Appeal CITATION : REGINA v VAN DYK [2000] NSWCCA 67 FILE NUMBER(S) : CCA 60731/98 HEARING DATE(S) : 11 August 1999 JUDGMENT DATE : 17 March 2000 PARTIES : Shane Hermanus VAN DYK - Appellant REGINA - Respondent JUDGMENT OF : Meagher JA at 1; Simpson J at 2; Smart AJ at 8 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/1275 LOWER COURT JUDICIAL Naughton DCJ OFFICER : COUNSEL : S J Odgers - Appellant R D Ellis - Crown Respondent SOLICITORS : T A Murphy - Appellant S E O'Connor - Crown Respondent CATCHWORDS : Criminal Law - sexual offences - admissibility of contents of document when it cannot be found and goes to more than credit - admissibility of evidence going to complainant's conduct and attitude towards accused - leaving of alternative verdicts of carnal knowledge - correct construction of Ss.61D, 61G and 78 of Crimes Act - directions as to complaint, need for direction that delay prejudiced accused - no danger of tendency reasoning - unique case where accused denied acts of indecency or intercourse but admitted other consensual intercourse, alternative case of consent not put - admissibility of "look of wanting" and exclusion - competence of trial counsel - sufficient evidence to support verdicts. LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 Papakosmas v The Queen (1999) 73 ALJR 274 CASES CITED: R v PKS, CCA, unreported 1 October 1998 R v Harvey CCA, unreported 11 December 1996 R v Graham (1998) 102 A Crim R 438. DECISION : Appeal allowed; convictions quashed. New trial ordered on Counts 3,4,5,7 (alternative verdict), 8 and 9 (alternative verdict). IN THE COURT OF CRIMINAL APPEAL 60731/98 MEAGHER JA SIMPSON J SMART AJ 20 March 2000 REGINA v Shane Hermanus VAN DYK Judgment 1 MEAGHER JA: I agree with Smart AJ. SIMPSON J : 2 I have had the benefit of reading in draft the judgment of Smart AJ. For the reasons given by his Honour I agree that grounds 2, 5 and 6 are made out and that grounds 7, 9 and 10 should be rejected. Having regard to the orders proposed by Smart AJ with which I agree, and the views which I am about to express, it is unnecessary to determine ground 8, that is whether the judge failed adequately to put to the jury the defence case. I simply wish to express in my own words my reasons for agreeing with his Honour's conclusions in relation to grounds 1, 4, and 11. Ground 1 3 This ground requires a careful analysis of the real issues as they emerged at trial. Since it was necessary for the Crown to prove absence of consent to the particular incidents alleged, consent was, in a sense, relevant in relation to each of those allegations. In another sense, however, consent was not a live issue in relation to those specific allegations, because the appellant denied they had occurred. Consent (or lack thereof) may have been seen as, at most, a peripheral issue. But the position taken by the appellant added a level of complexity to that otherwise simple formulation. His case was that consensual sexual activity had taken place on occasions other than those alleged by C. In order to evaluate that case it was proper for the jury to have evidence of the relationship between the two. The content of the diary, if the jury accepted that it was as described, could have assisted them in that evaluation. Specifically, it was relevant to the defence position. Accordingly, I agree that ground 1 should be upheld. Ground 4 4 The true issue in relation to the evidence concerning what (if anything) C told Ms Cotter is whether it was admissible under s 66 of the Evidence Act 1995. Debate about whether it is properly characterised as "complaint" evidence is not to the point. 5 All other pre-conditions to admissibility under s 66 having been met, the only remaining question was a factual one, whether the occurrence of the asserted fact was fresh in C's memory at the time of her alleged conversation with Ms Cotter. The conversation took place in about August 1984. The events to which she referred took place in 1983 and 1984. Although his Honour did not make an express finding of fact about recency, the terms of the conversation C alleged suggests that recency, as explained in R v Graham ([1998] HCA 61; (1998) 102 A Crim R 438) would inevitably have been established. The consequence of this is that the direction to the jury was rather more favourable to the appellant than the law demanded. The jury were told that they were not entitled to take the evidence as evidence of the truth of its contents. That is incorrect: Papakosmas v R [1999] HCA 37, 164 ALR 548, 73 ALJR 1274. Ground 11 6 I agree that the evidence in the bald form in which it was given, should, in the exercise of discretion, have been excluded. That is not to say that some more specific description of the appearance of the appellant, if it met the necessary tests, would also have to be excluded. 7 Accordingly, I agree with the orders proposed by Smart AJ. 8 SMART AJ: Mr Van Dyk appeals against his conviction on 5 counts of having sexual intercourse with C without her consent knowing that she was not consenting, C being under the age of 16 years, namely between 14 and 15 years and on 2 counts of carnal knowledge. The jury was unable to agree on 2 further counts of sexual intercourse without consent. In total, he was sentenced to a minimum term of 3 years penal servitude and an additional term of 1 year. 9 The events alleged occurred in 1983 and 1984 when she was 14 and 15 but the trial did not take place until October 1998. She did not report the matter to the Police until September 1996 when she was aged 26 and in her third year of a primary school teaching course at university and studying a subject called 'Children at Risk'. However on 26 September 1984 when she was 16 weeks pregnant C underwent an abortion. The Crown Case 10 C was born on 14 October 1968. She loved horses. When she was 13 years old and towards the end of 1981 her mother purchased a horse for her from the appellant. The horse was agisted at the R and M Ranch at Kellyville from 1981 until the horse was sold in 1984. About 1983 she (or her mother on her behalf) leased another horse which was also kept at the ranch. During this period the appellant boarded in the house at the ranch with the owner. He helped the owner, worked his own horses, bought and sold horses and took them to shows. During 1983-1984 he was working for a bricklaying company five to six days per week from about 7am to 3.20pm. He was nine years her senior and physically quite a tall, strong looking man. C spent considerable time at the ranch and often helped the appellant with his horses. He gave advice and help in relation to her horses. Quite a number of people had horses on agistment at the ranch and they called to tend them. 11 C stated that about 12 months after her association with the appellant began he made remarks on occasions about her breasts and her backside. About halfway through 1983 he touched her on the outside of her clothing, on her breasts and between her legs. There were instances, where she found that she was alone with him as a result of a job which he had asked her to do. In about June 1983 C ran away from home. She had lost her father and her uncle and was unhappy at home. Her mother had remarried. C walked from her home at North Rocks to the ranch at Kellyville to obtain her horse. She arrived after dark and found her horse had not been shod and therefore could not be ridden away. She spent the night lying on some hay in a shed. She encountered the appellant early the following morning and he helped her to hide during the following day and allowed her to use his horse float. It contained an area that could be used as a bunk. On the third day he explained to her that as the police were looking for her she would have to walk up to the house, allow the police and her mother to be notified and return home. She was not to mention having met him and his assistance. 12 She stated that about one or two weeks later, about June/July 1983 the appellant signalled her to come into the feed shed, led her behind some 44 gallon drums, put his hands inside her pants and inserted his fingers into her vagina. She said that she froze. He then placed her hand on his penis and moved her hand up and down for a few minutes. He looked outside and motioned to her that she could safely leave. This incident was the subject of the first count of sexual assault without consent. The jury were unable to agree. 13 She said that within 4 to 6 weeks of that incident the appellant called her over to his horse float and motioned for her to get inside with him closing the door after her. He pulled her close to him and touched her. He pushed her onto her knees by placing his hands upon her shoulders. He pulled down the top of his shorts and released his erect penis which he placed into her mouth. This was the subject of count two. She pulled back but he took hold of her head, moving it back and forwards and eventually ejaculated into her mouth. He told her to suck harder or faster. She felt she had no choice. The jury were unable to agree on this count. 14 She stated that later in the winter of 1983 the appellant asked her to carry some feed buckets down to the stables to feed his horses. As she was tipping the buckets out the appellant came up behind her, put his arms around her and turned her around so that she was facing him. He placed his hands down her pants and onto her buttocks. She tried to push away but he held her tight. He placed his hands on her vagina from behind her. He pulled his hands out and brought them around to the front of her pants. He inserted his fingers into her vagina. She froze. It hurt but she did not cry. He next guided her hand to his penis to masturbate him. This was the subject of count three and the jury convicted the appellant. 15 The next incident occurred in the summer of 1983/1984 probably during the school holidays. The appellant signalled for the complainant to go into the feed shed. He pushed a 44 gallon drum over and pulled the complainant's jodhpurs and pants down and forced her to sit on the drum. She said that she was very distressed and crying. He knelt down in front of her and inserted his fingers into her vagina. She tried unsuccessfully to close her knees together but he pushed them apart. He then placed his mouth and tongue in and around her vagina and performed cunnilingus. She started to cry and kept saying "no" to which he replied "That's okay. You're only crying because you're enjoying it so much." This incident was the subject of the 4th count. The jury convicted the appellant. 16 In 1984 between about January and June 1984 C was riding her horse in the back paddock. The appellant rode up and rode for a few minutes. He stopped, got off his horse and called her over. He took her and the horses into the brush and scrub, tying the horses up to a tree. He stood her in front of him and pulled her jodhpurs down. He pushed her down and then back so she was lying on the ground. He inserted his fingers into her vagina. After re-adjusting her position he performed cunnilingus for a few minutes. As she was trying to pull up her jodhpurs and get up he held her down, laughed and said, "You can't go and leave me like this." He pulled his erect penis out, inserted it in her mouth and moved her head backwards and forwards until he ejaculated. He told her "This is okay to happen between us but nobody else is allowed to know because they wouldn't understand." Her mother was quite ill with cancer. He remarked that if her mother ever found out it would kill her. This incident was the subject of the 5th count. The jury convicted the appellant. 17 In about May 1984 she went to the house to use the toilet. She believed nobody was there. After using the toilet/bathroom she opened the door and found the appellant standing outside the door. He took her by her shoulders and walked her into the lounge room. He stopped her leaving the house by the kitchen. He folded a towel, placed it on the floor and told her to lie down. She sat down and he pushed her so she was lying down. He pulled her pants down and positioned her on the towel. He placed his fingers into her vagina. Then he lay on top of her and inserted his penis into her vagina. He moved his penis in and out and did a lot of pushing. She had difficulty breathing. This seemed to go on for a long time. When he stopped he laughed and said she must have really enjoyed it. He removed the towel and wiped himself. He had ejaculated inside her. She noticed blood and semen. He told her to hurry outside because her mother would be looking for her. This incident was the subject of count 6. The jury convicted the appellant of sexual assault without consent. 18 A couple of weeks later (about June 1984) the appellant asked C to take feed down to his horses in the stables. She did so. He walked into the stables, put a rug on the floor and told her to lie down. He took her jodhpurs completely off, lay on top of her and inserted his penis in her vagina. He ejaculated inside her. This was the subject of count 7. The jury acquitted the appellant of the charge of sexual assault without consent but convicted him of carnal knowledge. 19 The next incident occurred soon after (about July 1984). C went into the house to use the toilet. She latched the door. She could hear someone turning the door handle and pushing the door, trying to come in. She called out that she would be "finished in a minute." The person did not say anything. She then thought it could be the appellant so she slowed down and waited for a few minutes before opening the door. The appellant walked straight in pushing her back inside the toilet. He closed and latched the door. He turned her around so she had her back towards him and pulled down her jodhpurs and her pants. He insisted that she remain in that position and held her there. When she tried to turn back around to face him he told her to bend over and pushed her into that position. He instructed her to put her hands on his knees. He moved her legs apart. He leant over her. He inserted his penis between her legs and finally into her vagina. This hurt. He moved back and forward a number of times and ejaculated. He withdrew his penis. She found it very difficult to stand up again and was very sore. She had semen running down through her legs. He said that she must really be enjoying things like this. She pulled her pants up as quickly as she could and left the bathroom/toilet. This incident was the subject of the eighth count. The jury convicted the appellant of sexual assault without consent. 20 The next incident occurred soon after the one just mentioned, probably about July/August 1984. She said that she had been in the wash bay area. He called her into the feed area. He checked to see if anyone else was there. He led her behind some 44 gallon drums and made her lie down on some hay. He pulled her jodhpurs down below her knees, lay on top of her and inserted his penis into her vagina. He ejaculated inside her and withdrew his penis. The incident was the subject of count 9. The appellant was acquitted of sexual assault without consent but convicted of carnal knowledge. 21 During the winter of 1984 C had not been well. Amongst other things she had been diagnosed as suffering from glandular fever. This was in July 1984. There was fatigue, headaches, feverishness and sore throats. In the course of a general review and examination on 19 September 1984 Dr Hutton found that C was about 16 weeks pregnant. She was unaware of this until told by the doctor. After counselling both C and her mother, a termination was arranged and this took place on 26 September 1984. The doctor did not explore with C the circumstances which led to her becoming pregnant. 22 Dr Hutton advised that the practice records showed her father had died in 1980 of a melanoma. Her mother had suffered from lymphoma in 1983, a potentially life-threatening blood cancer of the lymph glands. There were some tensions in the home but probably no more than the normal ones with strong willed teenage children. 23 The first time she spoke to someone about what had happened was about the end of August 1984 when she said to her friend and fellow horse enthusiast, Joanne Cotter, who also had horses at the ranch, "I think there's something going on between Shane and me." Ms Cotter replied "What?" C said "Well I don't know." Ms Cotter responded, "Well there's something going on between Shane and me as well." According to C they promised to tell each other everything from then on. C said that they used to talk about the things that the appellant was doing to her and Ms J Cotter. C said that after the doctor told her that she was pregnant she telephoned Ms J Cotter and told her what the doctor had said. Ms Cotter insisted that C tell the appellant. C did so and told him "I've just found out that I am pregnant." C said that he responded, "As far as I am concerned it's got nothing to do with me." C stated "Well, I am probably going to have to get an abortion." The appellant did not really respond. C continued to go to the ranch until her horse was sold in late 1984 but they had no contact. He ignored her. 24 In cross examination this passage appears: "Q What I'm asking you is what you told her [J Cotter] Shane was doing to you? A That he had been touching me, that he had had sex with me. I really. I can't recall the specifics of that conversation at all." 25 The Crown called Ms J Cotter but she could not remember any conversation with C as to the appellant during 1983 or 1984. She denied that anything ever went on between herself and the appellant. She could not remember having had a conversation with C about her being pregnant. Ms Cotter could not remember anything specific and was inclined to think that they did not occur. The evidence of Ms Cotter revealed that C had ended their friendship and that Ms Cotter was still on friendly terms with the appellant. 26 C's mother gave evidence that her daughter regularly attended at the ranch. She saw her daughter in company with the appellant and that he always seemed to be around the girls. She said "I used to see the look in his face when he looked at any of the girls." She described it as "a look of wanting". She was aware that the girls used to go down to a big shed at the front of the ranch where the appellant kept his horses and feed. 27 The Crown also called Mr D I MacAlister, a family friend of C and her family. He kept his horses at the R & M Ranch and was aware that C did likewise. He knew the appellant who lived at the ranch and had his horses there. He did not see C and the appellant together alone at the ranch. There were always people around. Very occasionally he may have seen them riding together in the front paddock. He turned 15 years of age in May 1983. She never mentioned any unease about going to the ranch. She wanted to go there to work and feed her horses. He was not aware of her being ill at ease; she appeared to be relaxed, happy and comfortable at the ranch. He had not seen her and the appellant in any compromising situation. She never made any complaint to him. 28 C said in cross examination that until she heard the definition of "sexual assault" or "child sexual assault" in the course "Children At Risk" and understood that it was a sexual relationship or an older or bigger person getting sexual gratification out of a younger or smaller person she felt that what happened was her fault and that she was to blame. Then in 1996 she knew that she didn't have a choice and was powerless. She became stressed about what had happened to her. At long last she was able to put a name to what he had done. 29 In cross examination she said that when she first obtained her horse she felt a sense of loss with the death of her father and her uncle and her mother's illness. The appellant befriended her and she trusted him. He was an experienced rider and she looked up to him. She thought the appellant cared for her. She insisted that she was not a willing participant in his sexual advances. She said that she did not understand that what was happening to her was child sexual assault. Sex was not talked about in her household. At one stage in cross examination this exchange occurred: "Q …do you accept or not accept that you participated because first of all you thought that he cared for you? A Possibly yes Q …you were looking for some reassurance that what was happening was correct between you and him? A Well Shane was telling me that it was okay and I was telling myself well it must be okay because he's saying it's okay." Her overriding desire was to ride well and learn as much as she could about horses. 30 She said in cross examination that she was very unhappy about what the appellant was doing to her and very uneasy about going to the R & M Ranch. However she was unhappy at home and wanted to go to the ranch. She said that on many occasions she did not wear a brassiere because the appellant had told her not to. This was probably in 1983. She agreed that she did try to please the appellant. She denied that she was the instigator of sexual intercourse with the appellant. She could not recall asking the appellant if he would pay for the abortion. C said that she told a girlfriend, Ms M Carter, in 1985 or 1986 at her holiday house on a weekend that she had become pregnant to someone at the R & M Ranch. The appellant said that she kept in touch with Jo Cotter who was a bridesmaid at her wedding in 1990. Then their paths diverged. 31 C said in cross examination that she had an old exercise book in which she would write things from time to time. Possibly in 1983/1984 she kept it in her room. She probably made references in it to her attendances at the ranch. She no longer had the book. She did not recall writing in it "Shane is a spunk, I wouldn't mind being screwed by him." It is possible that she made such an entry. She agreed that when she was 13 or 14 years of age she used the word "spunk" and possibly thought that he was a spunk. When she first got her horse she thought that the appellant was great. 32 It emerged in cross examination that despite the prior experiences of C in the stables and the feed shed she again, as to count 7, agreed to take feed down to the stables when asked by the appellant. She could not recall whether the incident occurred on a weekend or a weekday. As to count 9 she recalled going to the feed shed. She kept the feed for her horses there. Most other people did not keep their feed where she kept the feed for her horses. She could not recall any particular details about this incident. She could not remember this last incident as clearly as she could remember the other incidents. She could not remember exactly what happened. Having regard to the evidence it is understandable that the jury were not satisfied beyond reasonable doubt of the charges of sexual assault without consent but were satisfied of carnal knowledge. 33 Very close to the end of C's cross examination and in the absence of the jury the judge queried the approach of the cross examiner as to counts 3 and 8, the judge remarking that the two incidents which the appellant admitted seemed to correspond broadly with these counts. Counsel pointed out that the first incident admitted did not take place at the time covered by count 3; the incident taking place over one year later than the matters alleged in count 3. Apart from the time difference there was a broad similarity. As to the second incident, namely, that in the toilet, counsel pointed out that he had not challenged that an incident took place but rather that the incident (being the subject of count 8) did not occur as she had alleged but in a quite different way. Of critical importance on the appellant's version was that she consented. The jury did not accept the appellant's version. The Record of Interview 34 In his record of interview on 3 June 1997 the appellant said that when he first met C she was about 14, 15. She was in third form at school. He was taken through all of the incidents. He insisted that there were only two incidents involving wrongful conduct on his part. She consented on both occasions to what occurred. Indeed she was willing. However, he was aware that she was under 16 years of age at the time. As to the first incident, this happened down at the stables. She had been coming down to the stables and behaving in an over friendly way. He started kissing her there one day. He rubbed her on her breasts. He put his hand down inside her pants and put his finger in her vagina. He estimated that the incident lasted about ten minutes with the finger episode taking about five minutes. He denied any other misconduct. He was not sure of the times. This incident could have corresponded with the allegations in a number of the counts. The appellant was adamant that there was no forcing or compulsion on his part. 35 The appellant said that the second incident happened within one to three weeks of the first incident. He thought that he had finished working one horse and put it away. He went to have a cup of coffee before riding another horse. He went down to the house and while he was going into the kitchen she followed him down to the house and entered. He walked around towards the bathroom (toilet) and she "more or less" followed him around. He asked her if she wished to come in. She came in and they shut the door. He started kissing her. It was a spur of the moment encounter. He said that he undid her jeans, undid her zipper and pulled her pants down a bit. She did not take them off. At one stage he thought that she might have lowered her pants. She lay down on the floor. He inserted his finger in her vagina and was using it. She asked "Can you, will you do it" (or words to that effect). Then he penetrated her with his penis. No contraceptive measures were taken. He withdrew on the point of ejaculation. Each got up and dressed. He said that she described the experience as "good" and "great". He said that the intercourse was rushed. The occupier of the ranch, Mr Murray was in another room and other people came in to use that toilet. He estimated that the episode in the toilet took about ten minutes. He denied that he used any form of compulsion or pressure. He claimed that the intercourse took place because she was so willing. After the incident she went outside and resumed what she was doing. He said that for a week or so after the incident she did not come to the ranch. Within a short period she ceased coming to the ranch. 36 The appellant denied all the other acts of criminal sexual misconduct alleged against him. The appellant relied heavily on the number of people around the ranch and the absence of any protests or complaints to others. The appellant stated that he had kissed C a number of times. He was not sure of the number but he gave an estimate of about a dozen times. He said that he kissed her during the incident at the stables, on another 1 or 2 occasions shortly thereafter and during the incident in the bathroom. The appellant explained that his wrongful conduct occurred when he had fallen out with his girl friend. 37 The appellant denied that he had assisted C when she ran away from home and allowed her to stay in his horse truck. He said that she never stayed in the horse truck as there was nothing in there. 38 The appellant said that about a week or some weeks after their intercourse in the toilet she telephoned and told him that she was at her grandmother's (godmother's) place and that she needed $200 because she felt that she was pregnant and wanted to get an abortion. He said that he told her that if she was sure she was pregnant he would give her the money. He told her to find out for sure but he never heard from her again about that matter. He was wary because she said that she had not told her mother. After this telephone call he subsequently saw C at the ranch but the matter was not raised by her and he did not ask. He said that a few years later he saw her at a hotel with a male. She waved and greeted him. The Appellant's Case 39 The appellant's evidence was that none of the incidents happened in the way she alleged, that only two incidents occurred, that they occurred within a month of each other in about July/August 1984 and that she consented to all that occurred. On his approach the appellant should have been acquitted on counts 1 to 7 and 9. He should also have been acquitted of sexual assault without consent on count 8. It is difficult to see how, on his own story, he could escape being convicted of carnal knowledge on count 8. 40 In his evidence the appellant emphasised that the feed sheds and wash bays were open fronted and looked onto a large open area and that there were usually people around attending to their horses kept at the ranch. The number of horses agisted at the ranch varied from 50 to 80. The appellant denied that various incidents had occurred over about 14 months and asserted that the incidents he admitted happened over three to four weeks. He denied that in about the winter of 1984 there were four acts of sexual intercourse. There was only one such act and it occurred in the bathroom. He said that there was one incident of kissing in the stable and no more. He confirmed what he had said in his record of interview. On those occasions where there was some sexual activity between them she was a very willing participant. 41 The appellant's cross examination was illuminating. Amongst other things, the appellant agreed that there was plenty of opportunity to carry on a sexual relationship at the ranch. A lot of teenage boys and girls used the ranch. He would have been thrown off the ranch if there had been any hint of him having an affair with one of the girls using the ranch. This meant, in effect, that he had to be discreet both as to the girl with whom he had intercourse and where he had it. He had to ensure that there was no complaint and no witnesses who would report it. 42 The appellant denied that he ever put his hands down the back of her pants, put his fingers between the cheeks of her buttocks and inserted his finger into vagina from behind. He said that the only time he ever placed his fingers into her vagina was from down the front of her pants. That occurred in one of his stables. He gave this description: "We've gone down there, she was down there or she followed me to come down with me to help me feed the horses. One of us might have been taking a horse - leading a horse down or something and basically I suppose we turned to each other, we looked at each other, the next minute we're kissing each other and then there was a bit of fondling and that was basically it for that time." 43 By a bit of fondling he meant touching her breasts and her vagina with his hands first on the outside of her clothes and then on the inside. He agreed that he undid the button on her jodhpurs and then her zipper and placed his hands inside her underpants into her vagina. Their kissing was spontaneous as they stood and looked at each other. 44 He had kissed her previously. She had always been overly friendly but she had never made a sexual pass at him. She was obsessed with horses and looked up to him as a person who knew horses well. He was aware she was under 16. He estimated the incident lasted 10 to 15 minutes. He agreed that someone could have walked into the stables at any time. 45 The appellant said that between this incident and the one in the bathroom a couple of weeks later they had no conversation of a sexual nature. They did not discuss what had happened in the stable. 46 As to the bathroom incident the appellant was unable to say why C followed him down to the house. He did not ask the question. This passage appears: "Q Just happened to be there? A Well she followed me down yes, or follow - I didn't know if she was coming down to get a drink or just getting - wanted to use the bathroom, I don't know. Q So you're down there making a cup of coffee, putting the jug on, she just happened to be - you've turned around and she happened to be there. She followed you in and you just said 'How about going into the bathroom?'? A Yeah Q What was your purpose in saying 'How about going into the bathroom?'? A Well obviously to make advances to her I suppose" 47 The appellant said that the incident just happened notwithstanding that Mr Ray Murray was in the house and others may have entered the house to use the bathroom. If he had been discovered he would have been thrown off the property. The appellant said that he simply decided there and then in the house to invite C into the bathroom for the purpose of making advances. He was pretty sure that C knew his intent. After shutting the door they kissed and she asked him to make love to her or to have sex with her. She instigated the situation. He said that she took part in penile intercourse. He agreed that he undid the button on her jodhpurs. Either she pulled her pants down or he did. He believed they went down below her knees to her ankles. Then he undid his shorts and probably dropped them below his knees. They laid down on the floor. He put his fingers in her vagina and touched her. He did not think about the lino floor being cold. He then lay on top of her and had penile intercourse with her. He withdrew at the point of ejaculation, not ejaculating inside her but outside. They kissed for a couple of minutes. She said, "That was great." 48 A reading of the cross examination as to the circumstances in which the intercourse took place makes it hard to accept that this was consensual intercourse. There was virtually no foreplay, the place was on a cold bathroom floor, probably covered with lino, it was winter and on his version he had to squeeze in between her legs while she had a pair of jodhpurs, which were reasonably tight fitting, around her ankles or lower legs. He estimated that the intercourse might have lasted for three minutes. 49 The appellant stated in cross examination that C's telephone call about being pregnant came within a couple of weeks of the second incident. He thought the incidents happened about June/July 1984. While he was not 100% sure that the baby was his he was frightened about being blamed for the pregnancy of a 15 year old girl. After that he had nothing to do with her. 50 Mrs L Cotter agisted two horses at the ranch from about 1981-1991. Her daughter, Johanna, also had horses there. Mrs Cotter said that in 1983 she went to the ranch every night. She said that it was like a community and that there was always a lot of people there. She described C as "just one of the kids there." She knew C as a friend of her daughter. C was friendly but troubled by her mother's illness. Mrs Cotter said that the appellant did not have a look of wanting. The judge refused to allow her to be asked whether C ever appeared to be scared or uneasy upon the ground that it went only to her credit. 51 The evidence of Stephanie Smith, a sister of C, sought to be adduced by the appellant was ruled to be inadmissible by the judge. Appeal Ground 1: The judge erred in excluding evidence of the contents of C's diary. 52 As earlier appears C was asked in cross examination whether she ever remembered an entry in her "diary" (or exercise book) such as "Shane is a spunk. I wouldn't mind being screwed by him." She said that she did not recall it although it was possible. She was "not saying that yes I definitely wrote that." "Spunk" was a word she used. 53 Defence counsel sought to adduce evidence from Mrs Lily McAlister that C did write the words in question in her "diary". A copy of her statement was placed before the judge. That statement contained some general observations about C and her physical development. Inter alia, the statement read: "I was a close friend of Helen, C's mother up until about two years ago when C made the complaint about Shane. … One day Helen came to my home. She was very upset. She said "I've found C's diary and cigarettes in her school bag. I feel really guilty about reading it." I took the diary from Helen and read some of its contents. I recall reading words to the effect of 'Shane is a spunk. I wouldn't mind being screwed by him.' 54 C had agreed that she had an old exercise book in which she wrote things from time to time. C's mother would obviously know her daughter's exercise book and her writing. The mother produced the exercise book to Mrs McAlister as that of C. Mrs McAlister then saw what C had written in her exercise book. Mrs McAlister was able to give evidence of what she saw - s.66 (2)(b) of the Evidence Act 1995. The exercise book was missing. Neither C nor her mother had it. It was not suggested that anyone else had it. The best available evidence of the contents of the exercise book had to come from those who had seen it. Under s. 72 the hearsay rule does not apply to evidence of a representation about the person's feelings, intention or state of mind. At common law evidence of C's state of mind, namely, her desire to have penile intercourse with the appellant would have been admissible as bearing upon the probabilities that the intercourse which allegedly occurred was without her consent. 55 Counsel for the appellant at the trial while conceding that the evidence went to C's credit submitted that the evidence was not limited to that point. However, it was not explained to the judge clearly to what other issue or issues the evidence went. 56 The judge ruled: "…the proposed evidence…from Mrs McAlister on behalf of the accused goes to the credit of the complainant and does not go to any substantive issue other than credit. In those circumstances the collateral evidence [rule] would preclude that evidence being called and I will not … allow any evidence to be called on behalf of the accused in respect of the diary entry." 57 The judge was incorrect to rule that the evidence went only to credit and not to any substantive issue. The evidence of Mrs McAlister was admissible and should not have been excluded. Appeal Ground 1 has been established. The Crown contended that the exclusion of this evidence had no practical effect. She had not denied writing the words in question and Mrs McAlister was relying on what she had seen (or claimed to have seen about 16 years previously). The matter had a reasonably prominent place at the trial. After dealing with the Crown case and giving a number of directions of law, the judge told the jury the substance of the defence case: "The accused says that none of the nine alleged acts of sexual intercourse ever took place and that the complainant was simply lying to you. He says, however, that two other acts of sexual intercourse, not alleged in the crown case, did occur, one in the stables and one in the toilet. He says that you should accept him as an honest witness, but not the complainant. He says, in particular, that you should pay careful attention to the complainant's admission in evidence that although she could not recall it, it was possible that there may have been an entry by her in an old exercise book that 'Shane is a spunk. I wouldn't mind being screwed by him'. No such exercise book was ever produced at the trial, so you have not been able to look at it for yourselves. The complainant said she did not know the whereabouts of any such book and, probably, no criticism can be made of that. I think there was evidence that no-one knew where it was any more. The complainant said in cross-examination that she did not remember writing that. She did say that she probably regarded the accused as a spunk at the time when she got her horse. She was given the horse by her mother in 1981 or 1982. The accused said that both of those admitted sexual encounters were with the complainant's consent." 58 The judge referred to the entry in the exercise book and the evidence as to it later in the summing up when he was summarising the appellant's arguments. The point was clearly made. 59 It is not often that an accused contends that none of the alleged acts of intercourse happened and that anything which did happen was with the accused's consent. The jury may not have found such an approach easy to accept, especially if they thought the appellant's version of what happened in the bathroom was incorrect and that C's version was correct and was the subject of count 8. It is not possible to say that the evidence of Mrs McAlister may not have affected one or some of the verdicts of sexual assault without consent Appeal Ground 2: The judge erred in excluding evidence as to C's demeanour and behaviour towards the appellant and attitude towards coming into proximity with him. 60 This complaint applies to the exclusion of the evidence of Mrs L Cotter that C never appeared to be scared or uneasy at the ranch and that of Mrs S Smith. She said that C had very strong objections if there was no one to take her to the ranch, causing a scene over it. She wanted to go to the ranch. Mrs Smith was present at the ranch on many occasions with C. Mrs Smith also saw the appellant there. He was always around. C never expressed any unease about going to the ranch or being in the appellant's presence. Mrs Smith never observed any actions or conduct by C which would be consistent with her being ill at ease at the ranch. 61 Counsel for the appellant at the trial submitted to the judge that as a result of C's evidence there was an issue about whether C felt uneasy at the ranch. In his reasons the judge recorded that counsel for the appellant submitted that the evidence of Mrs Cotter went to the surrounding circumstances relevant to whether C consented to sexual intercourse and whether C was molested by the appellant. The judge held that the evidence of Mrs Cotter "really went to credit and that pursuant to the collateral evidence rule it was inadmissible. … it was calling evidence to rebut what was the evidence of the complainant as to matters relevant to her credit." The judge continued: "…In terms of the new Evidence Act that evidence is excluded by me on the basis that it was not substantially probative in terms of Section 103 of the Evidence Act. In terms of the new Evidence Act that is also the basis on which evidence of the contents of the exercise book style diary which was referred to in cross-examination of the complainant was excluded insofar as Mrs McAlister sought to deal with that subject in examination in chief on behalf of the accused. In any event, how can the witness Mrs Cotter give any evidence of observations relevant to whether or not the complainant consented to sexual intercourse with the accused and to what sexual intercourse, since he, the accused, denies that any sexual intercourse at all occurred as alleged by the complainant? On the accused's case consent is irrelevant. Insofar as the accused's admitted different and separate two acts of sexual intercourse are concerned, they have not been charged by the crown and are therefore irrelevant to proof of the crown case. Quite apart from that, again, how can the evidence of this witness, Mrs Cotter, of how the complainant appeared to her, in general terms, when the complainant was at the ranch and the witness was close enough to observe her be probative of whether or not, on other occasions, when the witness was not there, the complainant consented to sexual intercourse or was or was not otherwise molested by the accused? In my opinion the proposed evidence is too remote to have probative value and is therefore irrelevant and inadmissible in terms of Sections 55 and 56 of the Evidence Act. Those, then, are the reasons why the subject evidence has been excluded." 62 I am unable to agree with the judge that C's consent was irrelevant. Her lack of consent is an essential element to be proved on a charge of sexual assault without consent. It is unusual for an accused to raise the issue of no intercourse and assert that in any event all that happened was done with her consent but he is entitled to do so. I also disagree with the judge that the evidence did not bear upon the issues of consent and sexual molestation. Its weight was another matter. C's evidence revealed her returning to the ranch despite the unwelcome acts of sexual molestation. The appellant was entitled to submit to the jury that she would not have gone to the ranch if the appellant's attentions and activities towards her were unwelcome. 63 The judge ruled that the whole of the proposed evidence of Mrs S Smith was inadmissible. He said: "It also has been tendered so far only on the voir dire on the basis that it is relevant to surrounding circumstances constituted by this proposed witness's observations of her sister as going to the issue of consent and/or whether the accused molested the complainant on any of the occasions as alleged under the nine counts in the indictment. In my opinion, the proposed evidence cannot rationally affect those issues in the context of this trial - it is too remote and too general and therefore is not admissible in terms of Sections 56 and 55 of the Evidence Act." 64 I am unable to agree with these reasons. The Crown case was that C was being sexually assaulted quite frequently. Evidence that C never appeared scared or uneasy would be relevant to the issue of consent and whether the incidents happened. Mrs Smith, who was 2 years younger than C, was aged 12 in 1983. It is not surprising that she noticed no uneasiness in C and that C did not tell her what was allegedly happening. Nevertheless, this is a matter for the jury to assess. 65 As the evidence of Mrs Cotter and Mrs Smith was capable of bearing upon the issue of lack of consent and whether the incidents happened such evidence was admissible. Appeal Ground 2 has been established. On its own the exclusion of this evidence would not warrant upholding the appeal. By way of contrast, the evidence of the mother that the appellant had a look of wanting was admitted. Appeal Ground 3: The judge erred in leaving the alternative verdicts of carnal knowledge to the jury. 66 The judge left such alternative verdicts as to counts 6 to 9 each of which involved penile vaginal intercourse. The appellant contended that the alternative verdicts of carnal knowledge were precluded by s. 78 of the Crimes Act 1900 which was in these terms between 14 July 1981 and 23 March 1986: "78. No prosecution in respect of any offence under section 61E (1), 71 or 72 or under section 76 as in force at any time before the commencement of Schedule 1 to the Crimes (Sexual Assault) Amendment Act 1981, shall if the person upon whom the offence is alleged to have been committed was at the time of the alleged offence over the age of fourteen years and under the age of sixteen years, be commenced after the expiration of twelve months from the time of the alleged offence." 67 Section 61E(1) dealt with indecent assaults and acts of indecency. Section 71 dealt with unlawfully and carnally knowing a girl of or above the age of 10 years and under the age of 16 years and s.72 with attempts to carnally know such a girl. 68 Section 78 was amended and was in these terms from 23 March 1986 to 3 May 1992: "78. No prosecution in respect of any offence under s. 61E (1), 66C (1), 66D, 71, 72 or 76 shall if the person upon whom the offence is alleged to have been committed was at the time of the alleged offence over the age of fourteen years and under the age of sixteen years, be commenced after the expiration of twelve months from the time of the alleged offence." Section 61E (1) dealt with indecent assaults and acts of indecency, s.66C (1) with a person having sexual intercourse with a child between 10 and 16 and s.66D with attempting, or assaulting with intent, to have sexual intercourse with a child between 10 and 16. Sections 71 and 72, which were mentioned earlier, were repealed from 23 March 1986. Section 76 dealt with indecent assaults upon females. 69 Effectively sections 66C (1) and 66D replaced ss 71 and 72. Consent was no defence to charges under ss.66C(1) and 66D - see s.77. Section 78 was intended to apply to prosecutions for offences under the repealed ss. 71 and 72 and the replacement (but enlarged) ss 66C (1) and 66D. 70 Section 78 was repealed as from 3 May 1992. Sections 66C and 66D remain. 71 Counts 6 to 9 were laid under s.61D (1) of the Crimes Act 1900. Between 17 July 1981 and 23 March 1986 that sub-section read: "61D (1). Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse shall be liable to penal servitude for 7 years or, if the other person is under the age of 16 years to penal servitude for 10 years." That sub-section remained in those terms between 23 March 1986 and 21 February 1988. As from the latter date it remained in those terms except that 8 years was substituted for 7 years. Section 61D was repealed as from 17 March 1991. 72 Between 17 July 1981 and 23 March 1986 s.61G(2) read: "Where on the trial of a person for an offence under section 61D the jury is satisfied that the person upon whom the offence was alleged to have been committed was a girl under the age of 16 years but above the age of 10 years, and that the accused had carnal knowledge of her but is not satisfied that carnal knowledge was had without her consent, it may find the accused not guilty of the offence charged but guilty of an offence under section 71 and the accused shall be liable to punishment accordingly." 73 From 23 March 1986 until the repeal of s.61G on 17 March 1991, s.S61G(2) remained in substantially the same terms with the addition that it applied to offences committed under s.61D up to 23 March 1986. As from 23 March 1986 a new s.61G(2A) applied to offences committed under s.61D(1) after that date. Section 61G(2A) was in substantially the same terms as s.61(2) except that the jury was entitled to find the accused guilty of an offence under s.66C(1). By that time s.71 had been repealed. 74 The appellant submitted that from 1981 until 1992 prosecutions for carnal knowledge when the girl was between 14 and 16 years had to be commenced within 12 months from the time of the alleged offence. Indeed, in its references to s.66D, s 78 had an even wider operation. It was submitted that s.61G had to be read subject to s.78 otherwise defendants could be convicted of carnal knowledge even though no prosecution for that offence had been commenced within 12 months of its commission.. 75 The difficulty with this submission is that s.61G(2) specifically entitles a jury to bring in a verdict of carnal knowledge where it is not satisfied that carnal knowledge was had without her consent. There is no reference to any time limit or to s.78. The prosecution was for offences under s.61(D) (1) to which s.78 does not apply. In such a prosecution the alternative verdict of carnal knowledge is available by virtue of s.61G (2). 76 Appeal Ground 3 fails. Appeal Ground 4: The judge erred in the summing up to the jury on evidence of "complaint" 77 I have earlier set out the evidence of complaint being remarks made by C to Joanna Cotter and the alleged conversation as to the pregnancy. C gave evidence of these but Ms J Cotter did not recall them. At the trial the appellant's counsel submitted that the evidence of C as to what she had said to Ms J Cotter was not evidence of complaint. 78 The judge gave these directions: "You may choose to regard the complainant's evidence that she told her friend, Joanna Cotter, that she thought that something was going on between herself and the accused as evidence of complaint about what she has alleged the accused had been doing to her. Mr Heazlewood on behalf of the accused urges you not to regard that statement, if you believe it occurred, as a complaint. Well, that is a matter for your evaluation ladies and gentlemen, but I do need to give you an important direction of law about complaint evidence. First of all, you may or may not believe that the complainant did tell her friend Joanna Cotter that she thought that something was going on between the accused and herself. That is a question of fact. Accordingly, it is a question for you yourselves to decide. If you believe the evidence of the complainant that she told Joanna Cotter in late August or early September 1984 that she thought that there was something going on between the accused and herself, and shortly afterwards, that she was pregnant, and that Joanna Cotter advised her to tell the accused, you may, depending on what you yourselves think about the matter, regard that as evidence of complaint by the complainant against the accused. It is entirely a matter for you. However, you cannot regard that evidence as establishing the truth of the complainant's out of court suggestion that something was going on between herself and the accused [it] goes to her credit, not the truth of what she is saying. The fact that the complaint, if you choose to regard it as a complaint, was made is not, by itself, any evidence that the complainant was sexually interfered with by the accused without the complainant's consent. The relevance of that evidence, if you accept it and accept it as a complaint, is simply the fact that the complaint was made. That may assist you in determining the weight which you give to the complainant's evidence here in court as to the nine incidents of sexual assault which she has alleged against the accused. In other words, evidence of complaint does not go to the truth of the matter complained of, but to the general credit of the complainant. So if you accept the evidence of what the complainant told you that she said to Joanna Cotter as a complaint against the accused, that may assist you in your ultimate task of deciding the case because, the crown says, such complaint shows a consistency of conduct by the complainant." 79 The judge next summarised the arguments of the Crown and the accused. After noting Ms Cotter had no memory of the "complaint" and that the appellant said that what was said did not even amount to complaints the judge said: "The accused goes further and says that in reality there was an absence of complaint by the complainant to persons whom she might reasonably have been expected to complain and that this is inconsistent with the conduct of a truthful person who has been sexually assaulted as alleged in this case. The accused says that you should therefore regard the complainant's evidence that he sexually assaulted her as she has alleged as untrue." 80 The appellant submitted that he had admitted that he had had sexual intercourse with C and that the two issues were firstly, the number of acts of intercourse and when they occurred and, secondly, whether they were sexual assaults rather than consensual acts. The appellant submitted that what C said to Ms Cotter could not bear on either issue as she did not hint that there had been non-consensual activity. Not surprisingly C spoke in guarded rather than direct terms. What she indicated was a degree of sexual activity and intercourse. The appellant tried to distinguish between the acts of sexual intercourse which she alleged and he denied and other and different acts of intercourse which he admitted. The appellant complained that the Crown argued and the judge permitted the jury to reason that the evidence could support C's allegations that she had been sexually assaulted. Much depended on what the jury thought C was conveying. At the very least she was conveying that sexual intercourse had occurred and that all was not well in her relationship with the appellant. The jury was left in no doubt by the judge that the Crown case depended on her evidence and her credibility and that they had to be satisfied beyond reasonable doubt that C's version of what happened was true before they could find the appellant guilty. The jury were directed to consider C's evidence with special care. The extended consideration which the jury gave this case over 4 days indicates that they did just that. I appreciate that where the only witness as to a complaint is the complainant herself there is a strong element of "bootstrap" reasoning. It is not the law that a third person must give evidence of the complaint. Of course, it is usually very much better if that happens. 81 Reading the summing up as a whole, no miscarriage of justice has occurred on this ground. I reject this challenge to the summing up. Appeal Ground 5: The judge erred in the summing up to the jury on delay in complaint. 82 Specifically the appellant complains that the judge did not deal with the effect of delay in complaint upon him. The judge gave the conventional direction that absence of or delay in complaint does not necessarily indicate that the evidence of the complainant is untrue. The judge marshalled and set out the reasons given by her for going back to the ranch and not telling anyone about the sexual assaults. 83 The only reference by the judge to the effect of the delay upon the appellant was contained in the judge's summary of the points made by the appellant's counsel, namely: "(3) He submitted that the time lapse between 1983/1984 and September 1996 when the police became involved in the matter has resulted in such a time gap - twelve to thirteen years - that the accused has necessarily had difficulties in meeting her allegations. Mr Heazlewood argued on behalf of the accused that the delay has deprived the accused of the chance of telling you what were his movements on particular days." 84 The appellant's counsel at the trial asked the judge to give the appropriate directions as to the effect of the delay on the accused and referred the judge to the relevant authorities. The judge did not give the directions sought and gave no reasons for not following the authorities. 85 The appellant submitted that one example of the prejudice caused to the appellant by the delay was that the Crown Prosecutor relied in part on the absence of "critical detail" in his evidence as making it less credible (SU 24.2). The judge said in summing up: "Do not overlook the force of detail. In evaluating and weighing up facts it is often useful to consider whether matters of detail in description of critical matters properly add up and hang together, and even whether sufficient detail has been given to you. You may be less impressed where matters of detail have not been provided to you." 86 It is not necessary to traverse all the authorities. They have been collected and discussed by Spigelman CJ in R v. Johnston (1998) 45 NSWLR 362. In the present case what was required from the judge was a direction that the delay in complaint of 12 years or 13 years occasioned acute difficulties for the appellant in the conduct of his defence. After such a long period it would be impossible for him to identify who was at the ranch on a particular day and at the time of the offence alleged and obtain evidence that nothing untoward happened. Some of the incidents were alleged to have happened in sheds which were open in the front and to which patrons agisting horses had access. Further, the appellant, after such a long period, could not remember his movements on particular days and what happened. The appellant was deprived of the opportunity because of the lapse of such a long period of being able to support his evidence with adequate details and witnesses. The jury should have been warned that they must bear in mind that the appellant would experience great difficulty in defending himself and may not be able to adequately defend himself by reason of the delay and that accordingly they must examine and scrutinise C's evidence closely and carefully. Often in court cases one story is good until another is able to be told. 87 The giving of a warning was important in the present case when there were a large number of acts relied upon and the appellant admitted other acts and the judge had emphasised the force of detail. The difficulties which an accused has in a case like this in mounting an adequate and detailed defence are considerable and are matters which would not be readily apparent to lay persons unless pointed out and sufficiently explained. The failure to give the requisite direction when there had been such a long delay amounted to a serious deficiency in the summing up. This ground of appeal has been established. Appeal Ground 6: The judge erred in summing up in relation to the evidence of the complainant that Jo Cotter had told her that the "same things" were occurring between the appellant and Ms Cotter as between the appellant and the complainant. 88 Leave is required to argue this point as it was not taken at the trial. Counsel for the appellant stated that this ground was advanced on the basis that the judge was in error in leaving that evidence to the jury as capable of supporting the credibility of the complainant. 89 The appellant relied on Ms J Cotter stating that nothing ever "happened" between her and the appellant and that she never said to C that something had. He submitted that in these circumstances it was not permissible to direct the jury that they were entitled to accept C's evidence that Ms Cotter referred to sexual activity between her and the appellant. The judge said: "This direction also relates to evidence, if you accept it, by the complainant that her friend Jo Cotter said that she also thought that something was going on between herself and the accused. When Miss Cotter gave evidence, she denied that that was so. It is a matter for you whether you believe the complainant's evidence on that point. Even if you do, that evidence would not be capable of substitution for the evidence relating to the nine specific incidents, so you have really got to zero in on the - focus on the - nine alleged incidents that have been specifically charged." 90 The appellant submitted that in the context of the previous directions the jury would have understood the judge to be directing them that they could accept C's evidence and conclude as against the appellant that there was sexual activity between Ms Cotter and the appellant. Such a line of reasoning was in direct breach of the hearsay rule, and the jury should have been told that such reasoning was prohibited. Thus the jury should have been told that there was no evidence of Ms J Cotter and the appellant engaging in sexual activity and that the evidence in question could not be used for that purpose. 91 The appellant further submitted that while the jury were directed that they could not substitute that alleged sexual activity with Ms J Cotter, the judge had earlier directed them that the evidence could be used on matters of credit. Thus, it was contended, the jury would have understood that they were entitled to use evidence that the appellant engaged in sexual activity with Ms J Cotter to assist in deciding whether they believed C's evidence that she was sexually assaulted by the appellant over two years. This does not follow. There is a distinction between the evidence of C's complaint of the appellant having sexual intercourse with her and touching her and her evidence that Ms J Cotter had stated that she and the appellant had engaged or were engaging in sexual activity. The latter matter was allegedly given as part of the response of Ms J Cotter to C's complaint and formed part of the relevant conversation. 92 The Crown pointed out that the judge had reminded the jury that Ms J Cotter had denied that anything had occurred between her and the appellant. It contended that this direction was not an instruction that the jury could use this alleged prior representation by Ms J Cotter as evidence that the appellant had engaged in sexual activity with Ms J Cotter and was therefore some type of proof that he had engaged in the sexual activity alleged by C. 93 In reply the appellant submitted that given the operation of the hearsay rule the judge was required to direct the jury positively that they could not use C's evidence of Ms Cotter's statement that "the same things were happening" to her as evidence against the appellant that he had engaged in sexual intercourse with Ms J Cotter. The difficulty with the summing up is that the judge did not give the jury such a direction or instruct the jury as to how that piece of evidence could or could not be used. The jury were, of course, told that they had to decide whether they accepted C's evidence that Ms Cotter used such words. That highlights the problems and the lack of adequate instruction. We do not know how the jury dealt with this evidence. They may not have accepted C's evidence on the point. They may have accepted it and treated it as part of the complaint evidence or it may have been regarded as of no importance. They were not told that it could not be used as evidence against the appellant of sexual activity between him and Ms J Cotter. 94 This evidence was in breach of the hearsay rule. Even if it did fall within the exception to the hearsay rule in s. 66 (2) of the Evidence Act 1995, which is arguable, its use should have been limited under s. 136 of that Act and the jury instructed that it was not evidence of the truth of the assertions contained in it against the appellant but simply evidence of a response to the complaint. In the circumstances of this case where Ms J Cotter, in effect, denied the statement attributed to her, and both she and the appellant denied that there had been any sexual activity between them it would have been unfair for the statement attributed by C to Ms J Cotter as to such activity to have been used against him to establish that fact. Further, it is difficult to see the relevance of consensual conduct between the appellant and Miss J Cotter. This is especially true when it is denied. 95 At T5, lines 48 - et seq - T6, line 1 of 26 October 1998 the judge stated what he proposed to do in his summing up: "I would then deal with the complaint evidence or lack of complaint evidence … and give usual warnings about absence or delay in making complaint, then I would repeat the warning about the limited use of (sic) relevance of other uncharged acts, so that relates to background and context and incidentally that also relates to the statement, if the jury were to believe it, that Ms Cotter said … there'd also been something going on between the accused and her. That's only according to the complainant's evidence. Ms Cotter denied it but as the matter's been touched on in evidence, I think it should be subject of the warning." 96 Counsel did not submit to the judge that he was in error or ask for any further directions. That would have been the appropriate time for any submissions to be made. 97 As has been demonstrated it is hard to gauge the effect of the evidence in question upon the jury. It was treated by the judge as background material. However, it was quite different from background material involving C and the appellant. The jury were told that the evidence was not capable of being in substitution for the evidence relating to nine specific incidents on which they were directed to focus. Counsel was not troubled by the summing up on this issue and did not seek any further direction. This suggests that the matter was not treated as an important one at the trial. While the ground has been made out it is not one which alone would warrant a new trial. It will need to be considered with other matters. 98 As to appeal grounds 5 and 6, the judge appears to have dealt with the question of complaint as though the common law principles were applicable, namely, that the facts contained therein were not admissible as evidence of the truth of what was asserted. The judge proceeded on the limited basis which he specified. Since the summing up the decision of the High Court in Papakosmas v The Queen (1999) 73 ALJR 1274 has been delivered. That would seem to require a different approach and suggests that the approach taken by the judge on complaint evidence may have been too favourable to the appellant. Appeal Ground 7: The judge erred in the summing up in failing to direct the jury that they must not engage in tendency reasoning from (a) admitted acts of carnal knowledge involving the appellant and the complainant; (b) proved acts of carnal knowledge involving the appellant and the complainant; (c) proved sexual activity (other than that charged) involving the appellant and the complainant; or (d) sexual activity between the appellant and J Cotter 99 The Crown did not rely on any of this evidence as tendency evidence (T12, line 55, 19.10.98). The appellant accepted that the judge gave adequate directions when evidence of "relationship" was admitted, that is, evidence of sexual activity other than that charged. The judge explained (T22-23, 19.10.98) to the jury that the wider sexual history was admitted to avoid artificiality or unreality arising from acts seeming to be isolated. The judge told the jury that the Crown had to prove the particular acts covered by the counts in the Indictment beyond reasonable doubt. The judge also directed the jury that "they must not reason on the basis well the accused may have done some things wrong on other occasions relating to this young lady and therefore you will convict on these particular charged acts." 100 The appellant complained that the judge did not repeat the directions which he had given at an early stage of the trial in his summing up. However, in his summing up the judge referred back to them. He said (SU 30): "… I now want to touch on something which I had mentioned earlier in the trial when evidence was given about other acts of sexual interference, most of it, I think from memory, of a much lesser significance than the nine acts charged. You remember I told you that that was being allowed into evidence in the crown case on the basis that it was background or contextual matter only for the purpose of giving some explanation as to how the relationship between the accused and the complainant developed over the two years that was the subject of the charges. I informed you, and now repeat, that you should not substitute other acts of sexual interference, if you believe they occurred, for the ones which have been charged. Your job is to focus on the nine alleged incidents that have been charged. They are the ones that you have to consider for the purpose of your verdict and you should not substitute evidence of other matters for those and that includes the two admitted acts alleged by the accused, if you do believe that they were separate and different from the nine that have been charged." That was more than adequate in the light of the earlier directions. It would have reminded the jury of the earlier fuller directions. 101 The appellant complained that the directions did not forbid the jury from reasoning as follows: (a) the appellant engaged in sexual activity with a young girl in 1984, i.e. C, when as he admitted, he engaged in sexual intercourse with her; or Ms Cotter, if C's account was relied upon (b) therefore, he had a tendency to engage in sexual activity with young girls; (c) therefore, we would more readily believe C's account that he engaged in sexual activity with her in 1983. 102 The appellant contended that where evidence of the kind in question was admitted for some purpose other than to support tendency reasoning it is mandatory for a judge to direct the jury that they cannot use it for tendency reasoning. Counsel submitted that there was every danger of the jury so using it in the present case. 103 The Crown contended that it was not the task of the judge to direct the jury how they could not use various pieces of evidence but rather how they could use the admitted acts and proved uncharged acts. It was submitted that the judge gave clear, concise and correct directions as to the relationship and background use which could be made of the evidence of uncharged acts (either admitted or alleged). Further the judge directed that this type of evidence only went to credit and could not be used in substitution for the specific charges. 104 On occasions it is necessary to warn the jury not to engage in forbidden reasoning, for example, tendency reasoning. In the present case, the Crown only relied on the evidence in question by way of relationship and background. It did not rely on it to establish guilty passion or tendency. The evidence led was mainly concerned with the nine alleged incidents. The evidence of other uncharged acts which were not admitted was small in amount, compass and significance. The appellant admitted other uncharged acts. 105 Having regard to the directions which the judge gave and which have earlier been referred to and the burden and thrust of the evidence this was not a case in which there was a danger of the jury engaging in forbidden tendency reasoning. The jury received explicit instructions that they were to focus on the nine incidents and counts and were not to substitute any conclusions which they reached on the uncharged acts. This point was not taken at the trial and leave to rely upon it should be refused. Appeal Ground 8: The summing up did not fairly put the defence case 106 As earlier remarked this case was unusual in that the appellant denied that all the charged incidents occurred but admitted two other incidents. It was also the defence case that all the sexual activity between C and the appellant was consensual (in the sense that she acted in a way which tended to manifest consent). To support his case on the latter issue the appellant relied, amongst other things, upon the delay in complaint, the alleged entry in the "diary" (exercise book) and C continuing to frequent the ranch in 1983-84. 107 It was submitted that it was wrong for the judge to suggest to the jury that the defence was "all or nothing". In his opening remarks (T5 19.10.98) the judge said "you have to bring in a verdict on each one of the nine counts, it does not have to be all or nothing … You might find the accused guilty on some, not guilty on others." In his summing up the judge told the jury that they had to consider each count separately and give a verdict in relation to each one. He re-iterated that the verdicts on the various counts may be different. 108 The judge reminded the jury that the appellant had put C's credit in issue in relation to all nine counts. The judge told the jury (SU 17): "… the accused's response to the Crown case is not to take issue with whether, technically, the essential elements of the alleged offences have been proved. He simply says that none of them ever happened. So it is not necessary to go into the technical matters of what the essential elements are because he simply denies that any of these nine events occurred anyway. On that approach it would not be relevant for him to question whether or not in respect of any of the nine events alleged by the crown what happened amounted to sexual intercourse or whether or not the complainant consented because he says, and says on oath, that none of the nine alleged events ever occurred" 109 The judge had previously explained the elements of the offences charged and the alternative offences of carnal knowledge. I have earlier referred to part of the judge's summary of the defence case. The judge referred to the appellant's admission of two incidents and his assertion that they had taken place with C's consent. 110 The appellant complained of this passage at SU 24 in the summing up where the judge reminded the jury of this argument of the Crown, being one of four matters emphasised by the Crown: "(4) The accused does not really take issue with proof of the essential elements of the offence which has been alleged nine times in the indictment. He simply says that none of them ever happened. The Crown says that therefore if you accept that the alleged nine events occurred you might be more easily able to accept the complainant's evidence that on none of the nine occasions did she consent." 111 That was an unfortunate way to put the matter. If the defence is that the incident did not happen that puts in issue all of the elements of the offence. It was also erroneous to suggest to the jury that if they thought the incidents did occur they might be more easily able to accept C's evidence that on none of the nine occasions did she consent. That argument should have been corrected by the judge. The judge's earlier statement previously quoted was also unfortunate in that it did not adequately put the position having regard to the appellant's defences. 112 In his final address counsel for the appellant raised the issue of lack of consent and the appellant's lack of knowledge. He told the jury as to counts 1 to 5 that if they were satisfied that something happened but she consented it was their duty to acquit the accused. He pointed out that if they were satisfied beyond reasonable doubt that there was consensual penile vaginal intercourse they could convict of carnal knowledge on counts 6 to 9. Counsel for the appellant put to the jury that the inordinate and inexplicable delay destroyed any notion of unwanted sexual intercourse. Counsel suggested that after a delay of 12 or 13 years in going to the police there had been an escalation in memory and flashbacks leading her to assert that there had been unwanted sexual intercourse. Counsel emphasised that she was crying out for love, that she thought that he cared and that she kept going back to the ranch. She tried to please him. He also emphasised the entry she made in the exercise book. Counsel submitted that time had distorted her memory and that this was a case of a married woman with hindsight who, not having overcome the termination of her pregnancy, was trying to make good her teenage years. 113 While the summing up made clear to the jury that the appellant denied that any of the incidents occurred it did not put his alternate defence that there was no unwanted sexual intercourse on her part and the arguments in support of that defence. Counsel for the appellant trod a fine line in his address. At the conclusion of the summing up counsel for the defendant protested that it was unbalanced and had not properly put the defence case. This was a case where it was probable that the jury would be satisfied that the incidents or at least most of them occurred and that the real issue was likely to be her consent and whether he knew that she was not consenting. 114 On the first day of their deliberations the jury asked this question: "Does the phrase 'knowing that she was not consenting' mean that she had to resist in some manner? Please re-define 'reckless consent'." The judge, after repeating the question, said at SU 7-9 on 27 October 1998: "The answer to the question "Does the phrase 'knowing she was not consenting' mean that she had to resist in some manner?', the answer to that is "no", with this qualification, however - the accused had to know that she was not consenting. Physical resistance is not the only way to indicate non-consent . It could be by saying, "No, no, no", as the evidence was. It might be indicated by she said she "froze". I mean that is a question of fact for you whether she was consenting or not. I think too, certainly one I can recall of the events, she said she simply "froze". She said she thought she "had no choice" in the matter. In one I recall she said that she tried to "back off" towards the kitchen but was held too firmly and could not. So that the "knowing that she was not consenting" is really a question of fact for you to decide but it does not necessarily mean physical resistance. That is the way in which non-consent is typically shown but it does not have to be the only way. I think I will tell you how I defined those elements yesterday. "Without the complainant's consent" means without her conscious and voluntary permission or agreement. So "without her consent", and this is question of fact for you, without her conscious and voluntary permission or agreement, and I said "Thus a girl who submits to sexual intercourse as a result of terror is not regarded as consenting to it because that is not a conscious and voluntary permission or agreement." Now that is as to consent. Then the question as to whether the accused knew that she was consenting, that is the next essential element, that the accused knew that the complainant did not consent. I said to you that this is typically, but I add today, not necessarily, but the typical way in which it is shown is by evidence of clearly demonstrated resistance. That is because you might reason that if there was clearly demonstrated resistance the accused must have known that she did not consent because it must have been obvious to him. Recklessness goes to knowledge and what I said to you was that the accused is deemed to know that she did not consent if he was reckless as to whether she consented, and that means if he did not care one way or the other whether she consented but realised that she might not be consenting. So I think that is the answer. You may recall that it was pointed out to you that in a sense no issue was taken about the consent for the reason that the accused's defence was "Well none of these nine events ever happened." So he really did not get into the question of whether or not she consented, or whether or not he knew she was not consenting, because to do that would be inconsistent with a defence of saying "Well these events never happened." The thrust of his defence really was, "Well none of these things ever happened." So he really did not get into the nitty-gritty of debating those particular two points - the consent, and for that reason it was an all or nothing approach he had, "Well these acts of sexual intercourse just never occurred." He went on and he said, "But two others did.", but they are a bit of a red herring in the sense that you are not concerned with those, you are only concerned with the nine that are charged. So that is it." The judge then reminded the jury that they could return the alternate verdicts of carnal knowledge on counts 6 to 9 if they were not satisfied beyond reasonable doubt that the sexual intercourse was without consent. 115 Unfortunately, when these directions were given Heazlewood of counsel was not present, having retired to his chambers and his solicitor was left to deal with the matter. Although given the opportunity she was not able to make useful submissions. The following morning, after she had been in contact with counsel, she asked the judge for some re-directions. She handed up some re-directions prepared by counsel. Unfortunately, there is no copy of these draft re-directions. It was obvious that she was in difficulty and out of her depth. 116 In giving his further directions the judge did not seem to appreciate that the jury may regard the real issue as one of lack of consent and the appellant not knowing that she was not consenting. 117 In respect of the passage quoted above the appellant complained that that part commencing from the words "you may recall" to the end confused the account of the appellant in the witness box and the defence case. That case depended not only on the appellant's evidence but also on the material obtained in examination and cross examination of C and the other witnesses. 118 In view of his primary defence the appellant did not and could hardly say anything about consent or knowledge of consent. That did not mean that the defence case was "all or nothing" as the judge suggested. The effect of what the judge said at the conclusion of the passage quoted was to downplay if not virtually eliminate the issue of consent. There were substantial arguments available to the appellant on the consent issue including the large amount of alleged sexual activity for well over a year, the continued return to the ranch and her continued association with the appellant, her desire to please him, her failure to complain to her mother or godmother, (and, on the appellant's case, to anyone), her long delay in going to the police, her age of 14 and 15 years, her general intelligence and strong-willed nature. The appellant submitted that C's accounts of the various incidents raised in the starkest terms the issue of whether the appellant realised that C was not consenting. 119 The judge's direction that this was an "all or nothing" case was wrong. The summing up did not adequately put the appellant's case and was therefore unfair. The judge's response to the jury's questions compounded the problem. Objection was taken to the lack of balance in the summing up. The defects exposed are of a fundamental nature. This ground has been established. 120 However, there is one further matter which requires attention. The jury by their verdicts on counts 7 and 9 of not guilty of sexual assault without consent but guilty of carnal knowledge has shown that they were very much alive to the issue of consent and lack of knowledge that she was not consenting. These verdicts show that having been instructed that lack of consent and knowledge that she was not consenting were essential elements the jury applied that instruction and did not attach much weight to the judge's instruction that as the defence was that the incidents did not happen, lack of consent and knowledge that she was not consenting were inconsistent with such a defence and did not really arise. Accordingly, while the ground has been established it matters nought having regard to the way in which the jury dealt with the matter. 121 It is part of counsel's duty to remain for the summing up and while the jury is deliberating in case there are questions. Sometimes, the questions are important and require directions which may have a significant bearing on how the case is decided. If counsel had remained in the present case he may have been able to persuade the judge to correct the directions which he gave. Appeal Ground 9: A miscarriage of justice arose from the failure of defence counsel to obtain a ruling from the judge as to whether evidence of the appellant's prior conviction would be admissible in the event that the defence adduced evidence of good character in a particular respect 122 The appellant was able to call substantial evidence of good character. However, he had been convicted in November 1979 of conspiracy to cheat and defraud, placed on a good behaviour bond for three years and fined $500. At that time the appellant was aged 20 years. Counsel for the appellant did not seek a ruling from the judge that the Crown would not be entitled to adduce evidence as to the conviction as he was entitled to do: R v. PKS, CCA, unreported, 1 October 1998. 123 Mr Heazlewood of counsel has stated in his affidavit of 9 August 1999 "5. I chose not to pursue the issue of good character because (a) I was concerned that the 1979 conviction for dishonesty would then be placed before the jury by the Crown and (b) the appellant conceded that he had had sexual intercourse with the complainant at a time when she was under sixteen years of age. 6. At the time of the trial I was unaware of the decision of Regina v. PKS, CCA, unreported, 1 October 1998." It is not surprising that counsel was unaware of that decision as the trial started 18 days later. 124 The appellant faced two difficulties. He was dealt with for the dishonesty offence less than four years before the 1983 sexual assault offences and he had carnally known C, a girl under 16. If he sought to adduce evidence under s. 110(1) of the Evidence Act 1995 that he was generally a person of good character he was likely to be met by the conviction and his admitted sexual misconduct on two occasions. If he sought to establish that he was a person of good character in a particular respect, namely, he did not have intercourse with girls under 16, he would be met by his admitted sexual misconduct. If the particular respect was that he did not have sexual intercourse with girls under 16 without their consent that would be altogether too precious. I am far from persuaded that this was a case where counsel should have sought a ruling. On the appellant's own evidence he had committed the offence of carnal knowledge and indecently assaulted C. 125 Even if I were wrong in the view I have expressed the failure alleged would not have warranted the grant of a new trial. The ground that counsel for the accused was incompetent is being raised too frequently and indiscriminately. Appellate counsel are now demanding standards of perfection from trial counsel. This is unrealistic. I have never seen a defence conducted without a mistake. In the present case, counsel for the appellant at the trial conducted his defence with reasonable skill and competence. The mistake suggested is not one which is sufficient to support the contention that there has been a miscarriage of justice. In view of the appellant's admitted sexual misconduct this is not a case where character evidence was likely to be of any value. This ground of appeal is rejected. Appeal Ground 10: The convictions are unreasonable and cannot be supported. 126 The appellant submitted that the jury should have had a reasonable doubt as to whether the appellant knew or even suspected that C was not consenting (assuming that she was not). There was no evidence that he ever said anything to reveal such a belief or suspicion nor did his conduct on her account support the existence of such a belief or suspicion. Further, the crown did not ask the appellant in cross examination whether he knew or suspected that C was not willing and not consenting. The latter point may be disposed of immediately. He could hardly be asked about her not consenting when he denied the incidents alleged ever happened. 127 There was ample evidence that she was not consenting and that he was so aware. She gave evidence of having frozen, of saying no, of pulling her head backwards and the appellant taking hold of her head and moving it back and forwards and compelling her to have oral intercourse, of being distressed and crying, of trying to close her knees and of him pushing them apart, of him pulling her jodhpurs down and holding her head and moving it backwards and forwards and telling her not to tell her mother. Further, he would not let her leave the house prior to the first bathroom incident. The circumstances of the second bathroom incident bespoke lack of consent and knowledge on his part that she was not consenting. 128 I reject this ground of appeal. Appeal Ground 11: Evidence of the "look" on the appellant's face was wrongly admitted. 129 The evidence was that of C's mother and was that the appellant always seemed to be around the girls and "I used to see the look in his face when he looked at any of the girls." When pressed for further detail she described it as "a look of wanting." Objection was taken to the admission of this evidence. In R v. Harvey, CCA, unreported, 11 December 1996, this Court had to deal with the evidence of A, a fellow teacher, that 12 months prior to the offence charged as to T she saw Harvey sitting at a desk in the Asst. Principal's office with the child T standing a couple of feet away, that A saw no activity by either but observed an expression on Harvey's face which she described as "a look of like sexual gratification". This Court held that the evidence was admissible pursuant to s. 78 of the Evidence Act 1995 but that it ought to be excluded on discretionary grounds under s. 137. The appellant contended that Harvey was wrongly decided in so far as it held that s. 78 (b) was complied with. I do not agree. 130 The evidence of the mother as to the look of wanting is opinion evidence. Section 76 provides: "Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed " 131 Section 78 provides: "The opinion rule does not apply to evidence of an opinion expressed by a person if: (a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and (b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event. 132 The appellant contended that s. 78 (b) had not been complied with as it was not necessary to have evidence of the mother's opinion to obtain an adequate account or understanding of the mother's perception. The mother's opinion was based on what she saw. The appellant contended that the mother should have been required to give evidence of the primary facts upon which her opinion was based. The prosecution, by not eliciting these and otherwise, had not shown that evidence of the opinion was necessary to obtain an adequate account or understanding of what she had seen. 133 I am unable to agree. Most lay people and many lawyers would have difficulty in giving more detail. Indeed, "a looking of wanting" is a matter of impression and opinion. The test in s. 78(b) has been met. Section 137 of the Evidence Act provides: "In criminal proceedings the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 134 The appellant contended that the evidence in question was highly prejudicial but of minimal probative value. A "look" is transitory and so much depends on the subjective assessment of the observer. Mrs L Cotter had never seen such a look. The mother was giving evidence 14 years after the events in question. The delay is an important factor. Despite this "look" she had done nothing. The probative value of the evidence was outweighed by the danger of unfair prejudice to the defendant. It should not have been admitted. 135 The jury commenced to consider their verdicts on Tuesday 27 October 1998 at 9.30am and did not return with their verdicts until 12.28pm on Friday 30 October 1998. During the course of their deliberations they asked a number of questions and had quite an amount of the evidence replayed, including the whole of the appellant's evidence and some of C's evidence. Shortly after the luncheon adjournment on Wednesday 28 October 1998 the jury advised that they were unable to reach an unanimous decision on any count. The judge gave the usual Black direction. The jury continued their deliberations with evidence being played back at their request. I mention these matters to illustrate that this was a case in which the jury had considerable difficulties in reaching a verdict. In the present case the evidence wrongly admitted and rejected may have had a bearing on whether unanimous verdicts were reached on some of the counts. 136 The defects in the trial, particularly in combination, do not permit the application of the proviso to s. 6 of the Criminal Appeal Act 1912 permitting dismissal of the appeal on the ground that there has been no miscarriage of justice despite errors as to counts 3, 4, 5 and 6. Counts 7, 8 and 9 require separate consideration. 137 As to the verdicts on counts 7 and 9 on which verdicts of carnal knowledge were returned, the evidence which was rejected which bore upon the consent issue would not be of consequence. This would apply to Appeal Grounds 1 and 2. Appeal Grounds 3 and 4 failed. However, Appeal Ground 5 (failure to warn of the defendant's difficulties in defending himself) constituted a significant defect. Appeal Ground 6 is not of sufficient consequence. Appeal Ground 7 failed. Appeal Ground 8 does not apply because it was primarily directed to the consent issue. Appeal Grounds 9 and 10 failed. Appeal Ground 11 has some applications to counts 7 and 9 in that the evidence wrongly admitted formed part of the material pointing to the occurrence of frequent intercourse. With some reluctance, but particularly because Appeal Ground 5 has been established there must be a new trial on counts 7 and 9. 138 As to count 8, while there was some co-incidence between what C and the appellant said there were important differences as to exactly what happened. If the jury were of the view that they were speaking of the same incident the issue of consent was an important one and Appeal Grounds 1, 2, 6 and 9 would apply. Appeal Ground 5 was also important on the issue whether the incident happened as alleged by C. There must be a new trial on this count. 139 Since writing these reasons I have had the advantage of reading the reasons of Simpson J. I do not disagree with her observations as to Grounds 1 and 11. As to Ground 4, counsel did not raise the point on which she has relied either at the trial or on appeal. It is a point which counsel and the judge will need to consider carefully on the new trial. I prefer not to express a concluded view in the absence of argument. 140 I propose the following orders: 1. Appeal against convictions on counts 3, 4, 5, 6, 7, 8 and 9 allowed; convictions quashed. 2. A new trial of these counts be held. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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