New South Wales Court of Criminal Appeal CITATION : Regina v Roddom [2001] NSWCCA 168 revised - 9/05/2001 FILE NUMBER(S) : CCA 60140/00 HEARING DATE(S) : 23 April 2001 JUDGMENT DATE : 23 April 2001 PARTIES : Regina v Peter Joseph Roddom JUDGMENT OF : Meagher JA at 46; Sully J at 45; Howie J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/31/0235 LOWER COURT JUDICIAL Morgan DCJ OFFICER : COUNSEL : T.A. Game SC (Appellant) E. Wilkins (Crown) SOLICITORS : D.J. Humphreys (Appellant) S.E. O'Connor (Crown) LEGISLATION CITED : Criminal Procedure Act 1986 - s 107 Longman v the Queen (1989) 168 CLR 79 Crampton v the Queen (2000) 75 ALJR 133 CASES CITED: Crofts v The Queen (1996) 186 CLR 427 Jones v The Queen (1997) 191 CLR 439 R v Murray (1987) 11 NSWLR 12 R v Johnston (1998) 45 NSWLR 362 DECISION : Appeal allowed. Convictions and sentences quashed. Re-trial on all charges ordered. IN THE COURT OF CRIMINAL APPEAL 0141/00 MEAGHER JA SULLY J HOWIE J MONDAY 23 APRIL 2001 REGINA v PETER JOSEPH RODDOM JUDGMENT 1 MEAGHER JA: I will ask Howie J to give judgment. 2 HOWIE J: The appellant stood trial before a jury on an indictment containing three counts of sexual intercourse with a child under 10 years and one count of aggravated indecent assault of a child under 16 years. All of the offences were alleged to have occurred between 1 January 1989 and 31 December 1989 and to have been committed upon the same complainant, being the daughter of the appellant's defacto wife. 3 The appellant was convicted of each count and was sentenced to a total sentence of 5 years imprisonment made up of a minimum term of 3 years and an additional term of 2 years. There is no challenge to the sentence imposed. 4 The appellant appeals against his conviction on two grounds. The first is that the trial judge failed to warn the jury adequately in relation to the evidence of the complainant. The second ground is that trial counsel erred in failing to raise the good character of the appellant. Having regard to the nature of the grounds of appeal, the evidence given at the trial can be summarised very briefly. 5 The complainant was born on 7 April 1982. When the complainant was aged two years, her mother entered into a de facto relationship with the appellant. On 26 January 1989 the family moved into a house in Windale and it was at these premises that the incidents giving rise to the charges were alleged to have occurred. The complainant was aged six years when the first two alleged assaults took place and seven years when the second two are alleged to have occurred. 6 The first count in the indictment related to an occasion when the complainant was lying beside the appellant on a lounge watching television. The complainant said that the appellant placed her hand on his erect penis for a short period and then forced her head down on to his penis requiring her to fellate him for about five minutes. 7 The complainant said that a short time later, while she and the appellant were still lying on the lounge, the appellant placed his hand on her vagina and began to rub it. He then placed at least one of his fingers into her vagina and moved it around for a few minutes. This was the act of intercourse relied upon in the second count on the indictment. 8 The third and fourth counts arose from an incident that the complainant said occurred about six to eight months after the events that gave rise to the first two counts on the indictment. The complainant said that she awoke at about 10 pm one evening and left her room to go to the toilet. As she passed the bathroom door, which was partially opened, she could see the appellant in the bathtub. The appellant asked her to get into the bath with him and wash his back. The complainant said she removed her clothes and entered into the bath with the appellant. The complainant alleged that the appellant then forced her to perform fellatio upon him. This allegation formed the basis of the third count on the indictment. 9 The complainant gave evidence that the appellant then placed her on top of his groin and commenced to rub his erect penis on her vagina for a few minutes. It is this act that the Crown relied upon as the indecent assault alleged in the fourth count on the indictment. The circumstance of aggravation was that at the time of the assault the complainant was under the authority of the appellant. The complainant said that she struggled to get out of the bath but was held back by the appellant who once again placed her on top of his penis. 10 At this time the complainant's brother, Leslie, appeared at the door of the bathroom. The complainant jumped out of the bath and went to her bedroom. She said that as she left the bathroom her brother asked her what was going on and both she and the appellant replied "Nothing". 11 The complainant told no one about what she alleged that the appellant did to her until some 5 years after the incidents when she revealed to a school friend, Frances McCourt, that she had been sexually assaulted. The complainant said to her friend, "Graham used to make me suck him off and wank him". The complainant gave evidence that she used the name "Graham" and did not refer to the appellant because she was afraid that, if she told the truth, her friend would no longer want to go to the complainant's house and continue her friendship. The complainant said that a short time later she revealed to her friend that it was in fact the appellant and not Graham who had assaulted her. 12 The complainant gave evidence that after she had told her friend she also complained to her brother, Leslie, about the appellant's conduct. She also said that she raised her complaints with her mother in June or July 1996 in the presence of her elder sister Kirralee. The complainant said that her mother told her not to say anything to anyone. The complainant gave evidence that she did not tell her mother before this time because she was afraid that the revelation would cause the family to split up because her mother would have separated from the appellant. She also said that she did not want to grow up without a father. 13 In cross-examination it was put to the complainant that she disliked the appellant because he was a strict disciplinarian and was opposed to her leaving school. The complainant denied that this was so. 14 The complainant's brother, Leslie, gave evidence that, about 12 months after the family moved to Windale, he was lying in bed when he heard noises coming from the bathroom. He said it sounded like a struggle was taking place. He heard the complainant say words to the effect of "stop" and "leave me alone". He got out of bed to go to the toilet and as he passed the bathroom door he saw the complainant jump out of the bath, grab either her clothes or a towel and go to her bedroom. He said that as his sister passed him, he asked her what was going on but he could not remember whether the complainant replied. He said that the appellant told him to "get out" or "go away". 15 Leslie gave evidence that some hours later the appellant entered into his bedroom and told him not to tell anyone or the appellant would bash him and he should not tell his mother as it would ruin their relationship. Leslie said that about one or two years after the incident the complainant told him that the appellant used to touch her and that she did not like it but that she did not know what to do about it. 16 Frances Tufa (nee McCourt) gave evidence that in about October 1993 the complainant said to her, "A guy called Graham asked her to suck him off and pull him off". She said that in 1995 the complainant told her that the person to whom she had referred was in fact not Graham but the appellant. 17 The complainant's sister Kirralee gave evidence that in about June 1996 she was present when the complainant told her mother that the appellant had sexually assaulted her. She said her mother initially believed the complainant but later did not believe that the appellant was responsible. She said that her mother told the complainant not to tell anyone. 18 The complainant's mother gave evidence that the complainant did not tell her about the allegations in 1996 but that she only became aware of them when police contacted her in 1998. She said that on one occasion she asked the complainant if anyone had done anything to her and the complainant answered that she was all right and nothing had happened to her. The complainant's mother said that the complainant and the appellant would argue about the complainant not doing chores around the house and because she did not want to go to school. She also said that there were arguments between the appellant and Leslie because he resented the fact that she had separated from his father. 19 The appellant gave evidence denying all the allegations. He maintained that in 1989 he had a good relationship with the complainant. He said that the complainant disliked doing the dishes and getting up to go to school. He said that his relationship with Leslie was strained and he denied ever going to his room and threatening him. 20 Leah Mahaffy gave evidence that in 1995 or early 1996 she had a conversation with the complainant and her sister Kirralee during which she heard Kirralee say "We will do anything so that Peter [that is the appellant] won't be able to come back" and that the complainant replied "Yeah, definitely". Both the complainant and Kirralee denied that this conversation occurred when it was put to each of them during cross-examination. 21 The first ground of appeal contends that the directions given by the trial judge in relation to how the jury were to approach the evidence of the complainant were inadequate. It was submitted that what her Honour said to the jury in this regard failed sufficiently to bring home to them the danger of acting upon the evidence of the complainant in light of the delay in complaint. 22 There was a supplementary submission that the trial judge had failed to warn the jury about evidence which, it was said, was both inadmissible and highly prejudicial to the appellant. Both the complainant and Leslie in cross-examination had given answers which were unresponsive to the questions asked and which implied that the appellant had in some other way misconducted himself while living with the family at Windale. Answers by the complainant indicated that some incident had occurred which resulted in the appellant leaving the home and that something had happened to her sister. Leslie alleged that the appellant had assaulted and mistreated him. 23 No objection was raised to this evidence during the course of the trial and no application was made for a discharge of the jury. Nor did defence counsel seek any direction or warning in respect of this material. It is perhaps not difficult to understand why her Honour did not refer to this evidence in her summing up and why defence counsel would not have wanted the matters raised. Clearly in the atmosphere of the trial this evidence was not considered sufficiently prejudicial to warrant the jury being reminded of it during the summing up simply so that they could be told to disregard it or warned not to use it to the prejudice of the appellant. 24 However, the substantial criticism of the directions raised by this ground of appeal is that, in light of the delay of nearly nine years between the incidents giving rise to the charges and the trial, her Honour failed to warn the jury sufficiently of the dangers of convicting the appellant on the complainant's evidence. In support of this ground of appeal reliance was placed upon the decisions of the High Court in Longman v The Queen (1989) 168 CLR 79 and Crampton v The Queen (2000) 75 ALJR 133. It is clear that her Honour was aware of Longman and that she intended to give the jury a direction in accordance with that decision. Her Honour indicated as much before the summing up commenced when the Crown referred to prejudice arising from delay. But the submission before this Court is that her Honour failed to put that intention into effect. 25 After explaining to the jury the elements of the offences contained in the indictment and the particular evidence which related to each count, her Honour gave the following directions (SU 15): In this trial, as the Crown has quite reasonably, if I may say so, conceded, the evidence depends on [the complainant]. There is some supporting evidence from Leslie, but the main witness really is [the complainant]. In all cases where one person makes an allegation against another, juries are always told that they must scrutinise that person's evidence with care because apart, in this case, from Leslie - and I'll come to his evidence, the whole case, the Crown case, stands or falls on whether you accept [the complainant's] evidence about what she says took place. So I direct you that you must scrutinise her evidence carefully before you act upon it. And I just repeat, that is said in all cases where one person makes an allegation. And of course, in most cases of this type, you don't really expect to have people coming along and saying, "Well I saw that happen," because this type of activity, using your commonsense, normally takes place in private and the only person that we have that can come along, not to say that he actually saw anything in particular of a sexual nature taking place, however, was Leslie. 26 Her Honour then gave the jury directions as the significance of the lack of complaint in their assessment of the credibility of the complainant's allegations. Her Honour then said (SU 19): Well you should consider those reasons and the arguments that have been put forward by both the Crown and Mr Graham on behalf of the accused and determine for yourselves what weight should be given to her evidence in this case. The accused in that respect also points out to you that because of the delay between the time when these events are alleged to have occurred in that year of 1989 and the time when the allegations were brought to the accused's notice, which he said was when the police came to him in 1998, that he has necessarily had difficulty in meeting those allegations. And Mr Graham has spelt out to you that if, indeed, the complaint had been made or had been drawn to anyone's attention at the first reasonable opportunity in 1989 that the accused may well have had open to him - may or may not have had open to him an alibi, the fact that he was not, certainly not in the house at the time, that there were other people around, that he had come home one particular night and had a shower at 4 o'clock and not 9 or 10 o'clock at night as has been alleged by both [the complainant] and her brother. He could have had all sorts of avenues open to him, as suggested by Mr Graham, that would have assisted him in his defence in this case. And it may well have been, because he may well have had the opportunity, a matter that was nipped in the bud before it ever got this far. Those are matters that you will have to consider, ladies and gentlemen, as to the disadvantage that - which the accused has been placed because of the eight or nine years that have elapsed since these alleged offences took place. On the other hand, of course, you would look at the reasons given by [the complainant] as to why she didn't make those - say anything to anyone about it formally until this time. Or certainly to her mother until this time. 27 A little later in the summing up, after the trial judge had summarised the evidence of the complainant and directed the jury in relation to submissions made by defence counsel as to the motive for the complainant to lie, her Honour reminded the jury that it was for the Crown to satisfy them beyond reasonable doubt that the complainant was telling the truth. Her Honour then said to the jury (SU 27): I've already told you you must scrutinise her evidence with care and this is said in every case in which one person makes an allegation against the other. 28 Mr Game SC, who appears for the appellant, has submitted in effect that these directions were inadequate in two respects: firstly her Honour did not make it clear to the jury that it was the delay in the prosecution of these allegations which gave rise to the possibility that the complainant's evidence was unreliable and which required them to scrutinise her evidence carefully, and secondly that her Honour undercut her directions to the jury as to the disadvantages suffered by the accused in defending himself because of the delay. 29 It is convenient to deal with the two criticisms separately although it is their combined effect which has to be considered. The first criticism relates to the first and third parts of the summing up which I have set out above. 30 In Crampton, after quoting from the well-known passage from the joint judgment in Longman at pages 90 to 91, Justices Gaudron, Gummow and Callinan at [39] said: The passage distinguishes between two different sets of circumstances: those which might well invite, and we would interpolate, will generally require, comment; and those in respect of which a warning is imperative. 31 It is clear from the passage referred to by their Honours that the circumstances, which would invite or require comment, are those relevant to an evaluation of the complainant's evidence. Generally they will be circumstances that might suggest that the complainant's is unreliable. As Kirby J pointed out in Crampton at [126], these are matters which will generally be within the jury's common experience and understanding but which they may have forgotten or overlooked. Therefore, it is proper for the trial judge to remind the jury of these matters. 32 However, the circumstance in respect of which a warning is imperative is the effect of the delay upon the ability of the accused to test the complainant's evidence. The warning reflects the special experience of the law and needs to be conveyed to the jury in what Kirby J in Crampton described as "clear and unmistakable terms". In the joint judgment in Longman it was stated (at 91): The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. It was held that such a direction should have been given both in Crofts v The Queen (1996) 186 CLR 427 and Jones v The Queen (1997) 191 CLR 439, cases where the delays in prosecution were less than that in the present case. 33 The trial judge's directions, which are set out in the first passage quoted, did not identify for the jury those circumstances that might affect their assessment of the complainant's evidence. Her Honour did not refer to matters either of general application or those specifically arising from the evidence before the jury. The former category might have included factors such as the delay in the prosecution, the fragility of youthful recollections, the absence of early complaint and the distortion of recollection over time. The latter category might have included the complainant's reference to "Graham" in her first complaint to her school friend. 34 The failure of her Honour to make these comments was perhaps because the direction to the jury focused upon the fact that the evidence of the complainant was the sole basis for the prosecution case and for that reason had to be treated cautiously. In this regard the direction given and the explanation for it seems to be more consonant with what this Court said in R v Murray (1987) 11 NSWLR 12 than with what the High Court said in Longman. Murray was a case where the delay in complaint was only two days and it was held that there was no need in the circumstances of that case for the trial judge to give any directions in relation to delay. However Lee J, who gave the leading judgment, indicated that it would often be appropriate to caution a jury where the Crown case depended upon a single witness unsupported by any other evidence. This is what in effect her Honour did in the present case. 35 In my view her Honour failed to comment sufficiently on those matters that were relevant to the jury's assessment of the complainant's evidence. Her Honour did give directions as to the relevance of the delay in complaint to the credibility of the complainant in respect of the allegations she made. But in light of the long delay in the prosecution of the matter and the age of the complainant at the time of the incidents giving rise to the charges, something more could have been said. In addition the warnings given in both the first and third passages quoted above did not direct the jury's attention to the inability of the accused to test the evidence of the complainant. 36 Further, although it may be appropriate for a trial judge to point out to the jury that, in giving a warning or comment about a particular witness's evidence, he or she is not to be taken as expressing a personal opinion, the trial judge should not give the jury to understand that the warning or direction is being given merely as a matter of routine or formality. On each occasion when the trial judge directed the jury to scrutinise the evidence of the complainant with care, her Honour also told the jury that such a direction was given in all cases where one person makes an allegation against another. In my view there was a risk in making that comment, or at least in repeating it each time the caution was given, that the jury would minimise the importance of the direction to the particular case before them. 37 In considering whether the comments and cautions set out in the first and third passages of the summing up were adequate to ensure a fair trial for the accused, regard must be had to her Honour's directions in relation to the disadvantages which the accused may have suffered in attempting to defend himself which are set out in the second passage quoted from the summing up. There is no suggestion that her Honour failed to bring to the attention of the jury in a meaningful way the difficulties for the defence caused by the delay; cf R v Johnston (1998) 45 NSWLR 362 at 376. 38 However, the second matter relied upon as a defect in the directions is that her Honour undermined what she said about the disadvantages of the accused by her reference to the reasons given by the complainant for the delay contained in the last paragraph of the second passage quoted. 39 Clearly the disadvantage suffered by an accused in defending himself because of the delay in complaint has nothing at all to do with whether or not the delay is explained. The fact that there may be reasons for the absence of a timely complaint is relevant only to the issue of the complainant's credibility. That is why the trial judge is required to warn the jury that the delay in complaint does not necessarily mean that the allegation that the offence was committed is false: see s 107 of the Criminal Procedure Act. 40 In my view the criticism about this passage of the summing up is justified. In effect the jury were invited to take into account the reasons given by the complainant for the delay in complaint when considering the disadvantaged position of the appellant resulting from that delay. The jury might have thought that any difficulty experienced by the appellant in meeting the allegations lost its significance if they accepted the complainant's explanations for the delay. 41 In Crampton in the joint judgment of Justices Gaudron, Gummow and Callinan it was stated at [45]: In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. 42 In my view the directions in this case when considered as a whole fell short of that standard. Although trial counsel raised no objection to the directions given nor was any further direction sought, I am persuaded that the directions were inadequate and as a result a miscarriage of justice occurred. Therefore, leave should be granted to the appellant to rely upon this ground of appeal. I believe that the ground is made out and the conviction must be quashed. 43 In light of the view I have reached on this ground of appeal it is unnecessary to consider the second ground. Success on that ground would not entitle the appellant to a verdict of acquittal and there is no purpose to be served in determining it. 44 I propose that the appeal be allowed. The convictions and sentences should be quashed and there should be an order for a retrial on all charges. 45 SULLY J: I agree. 46 MEAGHER JA: I agree. The orders of the Court will be as enunciated. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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