Reported Decision : 51 NSWLR 736 123 A Crim R 194 New South Wales Court of Criminal Appeal CITATION : REGINA v PLV [2001] NSWCCA 282 FILE NUMBER(S) : CCA 60460/00 HEARING DATE(S) : 26 June 2001 JUDGMENT DATE : 25 July 2001 PARTIES : Regina PLV JUDGMENT OF : Spigelman CJ at 1; Simpson J at 98; Smart AJ at 99 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/3205 LOWER COURT JUDICIAL Goldring DCJ OFFICER : COUNSEL : P Byrne SC (Appellant) R D Ellis (Crown) SOLICITORS : Greg Walsh & Co (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - sexual offence - appeal against conviction - whether one verdict of guilty unreasonable in light of five verdicts of not guilty - where evidence corroborative of complainant on count on which convicted but no corroboration on other counts - CRIMINAL LAW - sexual offence - appeal against conviction - directions to jury - whether warning given by trial judge regarding delay in complaint was adequate - whether should have been a warning of the danger of convicting on the evidence of the complainant alone - where jury did not convict in absence of corroboration - whether direction regarding possible unreliability of witnesses adequate - where evidence given of events occurring when witness was a young child - s165 Evidence Act 1995 - CRIMINAL LAW - sexual offence - appeal against conviction - fresh evidence - whether new evidence admissible - where new evidence went only to credit of complainant - s106(d) Evidence Act 1995 - CRIMINAL LAW - sexual offence - application for leave to appeal against sentence - whether appropriate to sentence on standards at time of commission of offence or time of conviction - where long delay between the commission of the offence and conviction. Crimes Act 1900 Crimes (Child Assault) Amendment Act 1985 LEGISLATION CITED : Criminal Appeal Rules Criminal Procedure Act 1986 Evidence Act 1995 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Crampton v The Queen (2000) 75 ALJR 133; [2000] HCA 60 Gallagher v The Queen (1985) 160 CLR 392 Inco Europe v First Choice Distribution [2000] 1 WLR 586 Jones v The Queen (1997) 191 CLR 439 Kilby v The Queen (1973) 129 CLR 460 King, Bull & Marotta v The Queen (WASCA, 19 January 1998, unreported) KRM v The Queen (2000) 75 ALJR 550; [2000] HCA 11 Longman v The Queen (1989) 168 CLR 79 Matadeen v Pointu [1999] 1 AC 98 Mill v The Queen (1988) 166 CLR 59 R v ARD [2000] NSWCCA 443 CASES CITED: R v Davies (1985) 3 NSWLR 276 R v Dennis (NSWCCA, 14 December 1992, unreported) R v DJM (NSWCCA, 13 August 1992, unreported) R v GJH [2001] NSWCCA 128 R v Hemsley (NSWCCA, 8 December 1995, unreported) R v Hilsley [1998] VSCA 143 R v Holyoak (1995) 82 A Crim R 502 R v KCW [1999] NSWCA 112 R v Petterwood (QCA, 11 August 1998, unreported) R v Tillott (1995) 38 NSWLR 1 R v Todd [1982] 2 NSWLR 517 R v Young (1999) 46 NSWLR 681 State v Zuma (1995) 4 BCLR 401 Wentworth Securities v Jones [1980] AC 74 DECISION : 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence granted; 3. Appeal against sentence dismissed. IN THE COURT OF CRIMINAL APPEAL 60460/00 SPIGELMAN CJ SIMPSON J SMART AJ Wednesday 25 July 2001 REGINA v P L V The Appellant was charged with six counts alleging sexual offences against his younger sister. He was acquitted on five of those counts. The jury returned a verdict of guilty on one count of sexual intercourse. There was no evidence other than that of the complainant on any of the five counts on which the Appellant was acquitted. On the one count on which the Appellant was convicted, the younger brother of the complainant and the Appellant, gave evidence which was corroborative of the complainant's evidence. Each of the incidents was alleged to have occurred in a period from 1973 to 1974. In that period the complainant was eleven to twelve years old. The Appellant was seventeen to eighteen years old. The complainant complained to the police in December 1996. The trial was conducted in March 2000. A. Inconsistent Verdicts per Spigelman CJ, Simpson J and Smart AJ agreeing: The jury's one verdict of guilty is reasonable having regard to the five verdicts of not guilty. The corroborative evidence given by the younger brother on one count, and the lack of corroboration on all other counts, entitled the jury to differentiate between the counts. Jones v The Queen (1997) 191 CLR 439 distinguished. B. Delay in Complaint per Spigelman CJ, Simpson J and Smart AJ agreeing: The directions given by the trial judge to the jury, in circumstances where there was a delay of more than 25 years between the alleged occurrence of the events in question and the time of the trial, may well not have satisfied the requirements of Longman v The Queen (1989) 168 CLR 75 at 91 and Crampton v The Queen (2000) 75 ALJR 133; [2000] HCA 60. However, the aspect of Crampton and Longman relied on by the Appellant refers to the danger of convicting on the complainant's evidence alone . Because the jury only convicted where there was corroboration, no miscarriage of justice arose from the failure to give the direction. C. Unreliability of witnesses per Spigelman CJ, Simpson J and Smart AJ agreeing: There is no requirement that a warning about the fragility of youthful recollection need be given in all cases in which evidence is given by a witness about events that happened when the witness was a child. Section 165 of the Evidence Act 1995; Longman v The Queen; Crampton v The Queen; KRM v The Queen (2000) 75 ALJR 550; [2000] HCA 11 referred to. The ages of the complainant and of the complainant's younger brother at the time of the alleged offences were before the jury. The jury would have been conscious from its own experience of the potential unreliability of evidence recollected decades later by a person who was a young child at the time of the events. R v Davies (1985) 3 NSWLR 276 referred to. The point was not raised at trial and leave was required under s4 of the Criminal Appeal Rules. Leave refused. Although his Honour could properly have given a direction of the relevant kind, in the circumstances of the case, no warning was required. D. Fresh evidence per Spigelman CJ, Simpson J and Smart AJ agreeing: If the new evidence, to the effect that the complainant had indicated that her memory of the alleged events was only recently recovered, had been before the jury, there was not a significant possibility that the jury, acting reasonably, would have acquitted. Gallagher v The Queen (1985) 160 CLR 392 and R v Hemsley (NSWCCA, 8 December 1995, unreported) applied. Alternatively, the new evidence is relevant only to the credibility of the complainant and no exception to the 'credibility rule' was established. It is prima facie excluded by the 'credibility rule' embodied in s102 of the Evidence Act . It is not within the exception to the rule provided in s103, which applies only to cross-examination and is therefore inapplicable to this new evidence, which was sought to be adduced as evidence in chief. Section 106(d), also an exception to the 'credibility rule', would only be applicable if the words "or recall", which appear in s104(3)(b) are 'read into' the section. Words omitted by the legislature are not to be supplied by the court. R v Young (1999) 46 NSWLR 681 applied. Wentworth v Securities v Jones [1980] AC 74; Inco Europe v First Choice Distribution [2000] 1 WLR 586; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 referred to. E. Application for leave to appeal against sentence per Spigelman CJ, Simpson J agreeing: Sentences are to be imposed in accordance with the relevant sentencing principles existing at the time of conviction; and not according to the standards existing at the time that the offence was committed. In any event, the sentence imposed, of two years with a non-parole period of three months, could very well be regarded, at any time, as lenient. per Smart AJ The sentence which would have been imposed at the time of the commission of the offence is to be taken into account, but it is not decisive. The sentence imposed in this case would have been regarded as lenient in the 1970's. The trial judge's approach in assessing the Applicant's criminality at the time of the offence, and his subjective features at the time of sentencing, was correct. The delay between the commission of the offence and the complaint to the police and between the delay between the complaint and trial, were correctly considered by the trial judge. There was no error by the sentencing judge. R v Todd [1982] 2 NSWLR 517; Mill v The Queen (1988) 166 CLR 59; R v Holyoak (1995) 82 A Crim R 502; R v Dennis (NSWCCA, 14 December 1992, unreported); DJM (NSWCCA, 13 August 1992, unreported) referred to. IN THE COURT OF CRIMINAL APPEAL 60460/00 SPIGELMAN CJ SIMPSON J SMART AJ Wednesday 25 July 2001 REGINA v P L V JUDGMENT 1 SPIGELMAN CJ: The Appellant was charged on an indictment containing six counts alleging sexual offences against his younger sister. The six offences were alleged to have been committed on three separate occasions. Four of the counts were said to have occurred in the course of a single episode between 25 December 1973 and 31 December 1974 when the complainant alleged that the Appellant digitally penetrated her vagina (Count 1), forced his penis into her mouth (Count 2), penetrated her anus with his penis (Count 3) and inserted his penis into her vagina (Count 4). 2 Count 5 of the indictment related to an occasion during 1974 when the complainant alleged that the Appellant had placed his penis into her vagina. Count 6 related to an incident also alleged to have occurred between 25 December 1973 and 31 December 1974, when the complainant and the Appellant were on a trip with a number of other people on the Nepean River. The complainant said that when they were separated from the rest of the party he had pulled into a beach and inserted his penis into her vagina. 3 It was not until 3 December 1996, i.e. more than twenty years after the alleged incidents, that the complainant made a statement to the police. The trial, the subject of this appeal, was conducted in March 2000, i.e. more than twenty-five years after the alleged incidents. The Appellant was acquitted of Counts 1-4 and Count 6. He was convicted of Count 5. Goldring DCJ sentenced the Appellant to imprisonment for two years with a non-parole period of three months. The Appellant was released at the expiration of his non-parole period on 16 June 2000. 4 At the time of the alleged incidents in 1973 and 1974 the Appellant was aged seventeen or eighteen. The complainant was aged eleven or twelve. They had a younger brother called SV who was seven or eight at the time of the alleged offences. SV gave evidence generally corroborative of the complainant's case with respect to Count 5. There was no form of corroboration with respect to any of the counts of which the Appellant was acquitted. 5 As is usual in these kinds of cases in almost all respects the case was one of word against word. The evidence of the younger brother distinguished Count 5 in this respect. Grounds of Appeal 6 The Appellant relies on five grounds of appeal. 7 The first ground is that the verdict of the jury on Count 5 in the indictment is unreasonable having regard to the acquittals on all other counts. The Appellant relies on Jones v The Queen (1997) 191 CLR 439. 8 The second ground of appeal is that the directions given by the trial judge on the impact of the delay between the time of the alleged offences and the time of the trial were inadequate. It was submitted that a more complete and rigorous direction ought to have been given in accordance with the authority of the High Court in Longman v The Queen (1989) 168 CLR 79 and Crampton v The Queen [2000] HCA 60; (2000) 75 ALJR 133. A direction was given of this general character which I will set out in full below. It was submitted that the direction was not adequate. 9 The third ground of appeal is that the warnings given by the learned trial judge alleging the possible unreliability of the complainant and the witness, SV, were inadequate. Specifically it was submitted that a direction as to potential unreliability of the evidence pursuant to s165 of the Evidence Act 1995 was not given. 10 The fourth ground of appeal relies on what is submitted to be "fresh evidence" that suggests that the evidence of the complainant was derived from a recently recovered memory of the complaint. 11 During the course of the trial a voir dire was conducted concerning the admissibility of the complainant's evidence. The challenge to its admission was based on the proposition that the reliability of the testimony was affected by a process of recovery, sometimes referred to as "repressed memory". The nature of the evidence relied on at the trial will be set out below. 12 The additional evidence sought to be relied upon in this Court asserts that the complainant had said, on two occasions, words to the effect that she had only recently remembered the sexual assaults that had occurred to her. The complainant denied that either occasion had occurred and asserted that she had always remembered the incidents. The Appellant submitted that the evidence of recent memory, had it been before the jury, may have affected the jury's assessment of the reliability of the complainant's evidence. 13 The fifth ground is an application for leave to appeal against sentence. The Applicant was sentenced to a period of two years with a short non-parole period of only three months. It was submitted that the delay in bringing the charge against the Applicant has occasioned him an injustice because it has exposed him to punishment as an adult and to what was submitted was a "harsher sentencing regime than existed in the State twenty-five years ago". It was submitted that the Applicant should have been sentenced according to the standards at the time when the offence was committed. Summing-up 14 In the course of the summing-up the trial judge emphasised the significance of the credit of the complainant. His Honour told the jury: "Now in this case one witness is essential to proof of the Crown case and that is [the complainant]. You should therefore examine and scrutinise her evidence with very great care before you decide that a verdict of guilty should be brought in on each charge, if at all, and you should only find the accused guilty of any charge if you are satisfied beyond reasonable doubt of the truth of the evidence of [the complainant]. The fact that I give you this warning does not mean that I have any view about her honesty or reliability, it is warning that is given in any case where the Crown case depends on the evidence of one witness and it does largely here. At this stage also I need to warn you, because of the time that has elapsed since these events, that the evidence of any witness after 25 years, may be unreliable simply because of the passage of time. We all know that there are some things we remember and some things which we do not remember as clearly and there are some things that are affected by the passage of time, so that is something that you must bear into account when considering not only [the complainant's] evidence, but also the evidence of any other witness that relates to events so long ago." 15 His Honour also informed the jury: "There is no rule that you must or should put any witness and his or her evidence in a compartment as being totally reliable or totally unreliable. You have a right as judges of the facts to say of a witness that you accept all of his or her evidence, that you reject all of his or her evidence or that you accept part of it and reject other parts. You can arrive at a conclusion that any witness is accurate on some matters but inaccurate or mistaken in respect of others." 16 His Honour distinguished two aspects of reliability of a witness for the jury: honesty and accuracy. He gave a number of useful examples to assist them in the task of assessing witnesses. 17 His Honour's directions included the following: "In respect of all the witnesses, you will have to decide whether the evidence they gave was reliable, that is whether you feel you can act on it safely." His Honour warned the jury about the evidence of the family members indicating that the close relationship "might sound a warning bell". He expressly warned the jury to be cautious. 18 His Honour also elaborated on elements going to "accuracy" in the following way: "First, how carefully did the witness observe the particular thing that they gave evidence of. Witnesses have told you that they saw certain things and the first indication of their evidence being accurate, might be the care or lack of care they took at the time in making that observation, and that is particularly in this case, where things happen so long ago, how well has the observation been retained. Some things we see or hear are so significant to us that we are likely to retain an accurate recollection of them throughout our lives. Other things are so trivial or at the time so unimportant that we are unlikely to remember them accurately for very long or at all." 19 On the subject of delay, his Honour said: "I must warn you that the mere delay in making a complaint does not necessarily indicate that the evidence of [the complainant] is false. It may indicate that she has made it up, but it does not necessarily do so. There may be good reasons why a person who has been sexually assaulted, does not complain to anyone, and the weight to be given to that evidence is a matter for your decision, not mine. The reasons that [the complainant] gave was that these were things that were not talked about and she also said that she was frightened of her brother and he told her not to tell anyone. She gave evidence, you will recall, which he denied, that he used to abuse her physically, he used to punch her in the stomach and otherwise physically abuse her and both the other brothers [SV] and [CV], gave evidence that they also found [PV] dominating and they were frightened of him. There is also something that you must bear in mind. I have warned you about the difficulty that arises from the delay between the events complained of and this trial, that delay also presents difficulties for the accused. Even though he does not have to prove anything, it does make it much more difficult for him to meet the allegations." 20 Submissions were made in the absence of the jury to the effect that his Honour should give additional directions with respect to the effect of delay. When the jury returned his Honour added the following: "I said to you earlier that this delay made it difficult for the accused to meet the allegations and there are two things, I think, that are particularly relevant there. In cases of sexual assault it is common to have medical evidence about the physical state of the alleged victim. Because it was twenty five years later it was not possible to get any medical evidence. It was also impossible after twenty five years for [PV] to find people who might have said that he could not have done these things because he was not there and that is a disadvantage about which you should be aware. The other thing I should say to you is that you have heard [the complainant's] explanation for why she did not complain. You have to take that into account. The delay itself is long and it may affect your judgment as to whether or not you accept [the complainant's] evidence. It is a very long time and you should exercise very considerable caution before you decide to accept that evidence and convict the accused of any offence." Inconsistent Verdicts? 21 The Appellant and the Crown both accept that there was a rational basis for the differentiation amongst the six counts. The evidence of SV corroborated to some degree the evidence of the complainant on Count 5. There was no corroborative evidence on the counts on which the jury acquitted. 22 Nevertheless, on the basis of the reasoning of the joint judgment in Jones, especially at 453-455, it was submitted that the doubt experienced by the jury in relation to the five counts on which they acquitted diminished the overall credibility of the complainant and that there was nothing in the evidence of the complainant in relation to Count 5 which differentiated it in any material respect from her evidence with respect to the other counts. 23 The Appellant noted that the corroborative testimony came from a person who was only seven or eight years of age at the time. It was submitted that this evidence was consistent with a physical confrontation between his elder brother and sister, but did not necessarily relate to a sexual incident. 24 It was submitted that in all the circumstances the evidence of SV was insufficient to justify the jury accepting the evidence of the complainant on Count 5, when they were not satisfied beyond reasonable doubt of her evidence with respect to the other two incidents. 25 SV's evidence was to the effect that he had heard the complainant crying in the Appellant's bedroom. He said that he opened the bedroom door and saw the complainant lying on the bed and the Appellant lying on top of her. The Appellant jumped up, ran towards him and told him to "fuck off". 26 The complainant's evidence was generally to the same effect. She said that the Appellant yelled out the words "get out you little bastard". There was some discrepancy between the two versions as to whether the Appellant was wearing underpants or a speedo swimsuit and whether the Appellant jumped up or not and whether the complainant was clothed. However, the evidence was generally corroborative and the discrepancies were before the jury. 27 The Appellant submitted that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the Appellant on Count 5. No submission was made that there was any defect in the directions that his Honour made in this regard. The differentiation in the results was sufficient, it was submitted, to conclude that the guilty verdict was unreasonable. 28 The joint judgment in Jones concluded at 455: "When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory." 29 The joint judgment had earlier referred at 453 to: " … the lack of any corroborative evidence, in particular, the absence of any medical evidence …" [reference omitted] as a factor which: " … made it necessary for a reasonable jury to scrutinise the complainant's evidence with considerable care". 30 The absence of corroboration was of significance to the reasoning of the High Court in Jones in determining that the conviction in that case was unreasonable. In the present case, as noted above, the conviction occurred on the only count on which there was some corroboration. Although the testimony of the complainant was not regarded by the jury as sufficient to satisfy them beyond reasonable doubt when standing alone, the jury did reach that state of satisfaction when that testimony was, in material respects, confirmed. In my opinion, this is an acceptable and rational course of reasoning. 31 Other authorities since Jones have accepted that the presence or absence of corroboration is a relevant point of differentiation between verdicts of acquittal and conviction. In a number of cases juries convicted only in cases where there was corroboration and the court did not intervene (see e.g. King, Bull & Marotta v The Queen (WASCA, 19 January 1998, unreported); R v Petterwood (QCA, 11 August 1998, unreported); R v Hilsley [1998] VSCA 143 at [60] and [78]; R v KCW [1999] NSWCCA 112 at [95]-[96]; R v ARD [2000] NSWCCA 443 at [23], [121]-[124] and [201]). 32 In Jones at 453 the joint judgment said: "It is difficult then to see how it was open to the jury to be convinced beyond reasonable doubt of the guilt of the appellant with respect to the first and third count. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count." [Emphasis added] 33 In my opinion the existence of evidence which corroborates the version of events given by a complainant in a material respect is a "surrounding circumstance" which entitled the jury to differentiate between the counts. 34 In my opinion this ground of appeal should be rejected. Direction on Delay 35 The trial judge gave the jury a direction with respect to the effects of delay as quoted above. His Honour complied with the statutory obligation, now found in s107 of the Criminal Procedure Act 1986, and indicated to the jury that there may be good reasons why a victim of a sexual assault does not complain. He balanced this direction with another direction indicating that the jury should "exercise very considerable caution" before accepting the complainant's evidence. 36 The Appellant submitted that his Honour should have gone further and given an explicit warning in the full form identified by the High Court in Longman v The Queen supra at 91: "… it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning was satisfied of its truth and accuracy." 37 The significance of a warning in these strong terms has been emphasised in the subsequent High Court decision of Crampton v The Queen supra at [39], [45] and [132]. See also R v GJH [2001] NSWCCA 128 [31]-[39]. 38 It may very well have been that in the present case a direction of this character was appropriate. That may have been determinative if there had been a conviction on any of counts 1-4 or 6. However, there was no miscarriage of justice by reason of the absence of the direction. 39 A Longman direction, as affirmed in Crampton, refers to the danger of convicting on the complainant's evidence alone. Even in the absence of an express direction about the dangers of doing so, that was the course which the jury in this case adopted. It refused to convict on the basis of the complainant's evidence alone. It convicted only where that evidence was corroborated. In my opinion this ground of appeal should be dismissed. Direction on Unreliability of Complainant and Corroborative Witness 40 The Appellant submitted that the trial judge should have given a distinct and express warning as to the potential for unreliability of the complainant and the younger brother SV, whose corroborative evidence proved crucial with respect to the charge on which the Appellant was convicted. The basis for the unreliability was the fact that they were giving evidence of events twenty five years ago, being events which had occurred when the brother was seven or eight and the complainant was eleven or twelve. 41 It was submitted that the potential unreliability of the evidence required a direction under s165 of the Evidence Act. Section 165 only applies if there was a request for such a direction. There was none at the trial. Accordingly, s165 does not apply in terms. 42 However, s165(5) makes it clear that a trial judge may give a warning with respect to potential unreliability of evidence, even if s165 itself does not apply. As Brennan, Dawson and Toohey JJ said in Longman supra at 86: "… the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case …" 43 The Appellant submitted that what was missing in the present case was an express reference by the trial judge that the potential for unreliability of the evidence of both the complainant and SV "based not so much on the passage of time, but on the fact that the witnesses were giving evidence about events which occurred when they were young children". His Honour's directions on delay did not in terms refer to the youth of the complainant and SV at the time of the events. 44 No submission that the failure to comment or warn about the reliability of the complainant or SV by reason of the fact they were children, was made to the trial judge. Accordingly r4 of the Criminal Appeal Rules applies. 45 In Longman supra McHugh J, with reference to evidence of a complaint, in a passage applicable to any witness giving evidence of what happened to them as a child, said at 108: "… experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors …" 46 In Longman supra, Deane J said at 95-96: "A trial judge has the general responsibility of giving appropriate directions to assist the jury in the performance of their function as the judges of fact. That responsibility includes the giving of an appropriate caution or warning in circumstances where there are potential dangers in acting upon particular evidence which may not, without such a caution or warning, be appreciated by the jury." 47 These two passages were referred to in the joint judgment of Gaudron, Gummow and Callinan JJ in Crampton supra at [40]-[45]. Their Honours concluded, after finding that the Longman warning should have been given, at [45]: "Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman : the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion." 48 The other members of the Court in Crampton referred only to the Longman warning at [5], [67], [128] and [142]-[143]. I do not understand the joint judgment to require a caution or warning about "the fragility of youthful recollection" in all cases. In any event, there is no decision by a majority of the High Court requiring a warning whenever evidence is given by a witness about events that happened when the witness was a child. 49 This Court should be slow to add to the number of directions and warnings which trial judges are required to give. McHugh J said in KRM v The Queen (2000) 75 ALJR 550; [2000] HCA 11 at [37]: "The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings." 50 It is, of course, appropriate to make a comment on matters which jurors would ordinarily be expected to know. (See Crampton supra at [125]-[126]). Unlike Crampton, where there were a number of interrelated deficiencies in the summing-up, in this case only express reference to the "fragility of youthful recollection" was absent. In my opinion, that omission did not, of itself, result in a miscarriage of justice. 51 The Court does not have the addresses of counsel and is not aware of the submissions made to the jury in this regard. The potential unreliability of evidence which is recollected decades later by a person who was a young child at the time of the events is a matter which would be known to the average juror. It is not a matter of which the courts have become aware by reason of any special experience. 52 The age of the complainant at the time of the offences was adduced in chief. In the course of both his evidence in chief and his cross-examination, the youth of SV was mentioned. However, the cross-examination did not expressly challenge his recollection on the basis of his youth at the time of the events. 53 In R v Davies (1985) 3 NSWLR 276 the issue before the court concerned the failure of the trial judge to give a direction that failure to make a complaint could be taken into account on the credibility of the complainant in accordance with the High Court's decision in Kilby v The Queen (1973) 129 CLR 460 at 465-466. Hunt J, with whom Slattery CJ at CL and Carruthers J agreed, said that a direction of that character should be given as a general rule. Nevertheless, the court held that the issue of the credibility of the complainant was plainly before the jury and notwithstanding the failure to put the Kilby direction in terms to the jury, leave under r4 was refused. Hunt J indicated that experienced counsel at the trial did not think it necessary to ask the trial judge to give such a direction. Counsel in this case made submissions about the need to add to the warnings given, and the judge did so. No warning about the youth of the complainant or her younger brother was sought. 54 In my opinion, the jury would have been conscious from its own experience of the potential for unreliability of evidence given, after more than two decades, by a person who was a child at the time of the events being recalled. To use the formulation of Deane J in Longman, this was not "evidence" the dangers of which "may not, without such caution or warning, be appreciated by the jury". 55 This was a matter on which the trial judge could properly have commented, but was not such as to require a comment or warning. I would refuse leave under r4. Even if I had granted leave I would have rejected the ground of appeal on the same basis, i.e. the jury would not have been unaware of the potential for unreliability on the basis propounded. New Evidence 56 Prior to the trial a voir dire was conducted as to the admissibility of the evidence of the complainant on the basis that the complainant's memory had been recovered or reconstructed in such a manner that it was unreliable and, accordingly, was inadmissible. Alternatively, it was submitted the evidence was so unreliable that the trial judge should exercise his discretion under s137 of the Evidence Act to exclude the evidence. 57 Before the trial judge the Appellant primarily relied on this Court's decision in R v Tillott (1995) 38 NSWLR 1 which drew an analogy between hypnotically induced testimony and the evidence of a person who had undergone a form of memory recovery known as eye movement desensitisation and reprocessing (EMDR). In that case the evidence was held to be inadmissible. In this case the trial judge admitted the evidence. 58 The case for the Appellant before the trial judge was based on an expert opinion from a clinical neuro psychologist, Dr Andrew Gibbs, who gave evidence to the effect that the evidence of the complainant showed signs of being based on a reconstructed or recovered memory and was unreliable. The Crown called an associate professor of psychiatry from the University of New South Wales, Dr Quadrio, whose evidence to the contrary was preferred by the trial judge. 59 The complainant asserted, before the trial judge as in this Court, that she had never forgotten the general features of the abusive relationship she had had with her brother, although she accepted that she may have lost sight of some details. 60 One of the few pieces of evidence before the Court, on which Dr Gibbs had based his opinion, was a letter which the complainant had written to her mother. In his judgment on the voir dire the trial judge said: "It is true that within this letter there are statements that are consistent with someone who is trying to remember parts of things that have happened in the past but cannot remember all of them, but it is not, in my view, contrary to what Dr Gibbs says, self-evident that [the complainant's] memory was being reconstructed. I prefer the evidence of Dr Quadrio who says that the statements in this letter are consistent with a person who does have a memory of the basic facts but has lost the detail. Dr Quadrio says this is common, and I accept that evidence." 61 His Honour rejected the submission that the complainant's evidence was inherently unreliable. He also refused to exercise his discretion under s137 of the Evidence Act to exclude the evidence. 62 The additional evidence which has become available to the defence goes to the issue of whether or not the complainant did in fact retain, as she asserted during the course of her evidence on the voir dire, a recollection of the general substance of the events of which she complained. 63 A witness, Ms Elizabeth Gunn, swore an affidavit in these proceedings indicating that she has known the family of the Appellant and the complainant since 1972. In her work as a primary school teacher she had contact with the special education needs of the complainant's stepson. In that capacity she became aware that the stepson was upset and discovered from his teacher that it had something to do with sexual abuse allegations by the complainant against the Appellant. Ms Gunn said that she had a conversation with the complainant about this matter. She said: "When I asked why she had waited so long to do something about it, she said that she had only recently remembered it. I asked how the memories had surfaced and she said it was at her natural son's birthday party. I asked what had specifically triggered the memory. There was a long pause and then she said vaguely 'A curtain moving at a window'. I asked her about what she had done when she had experienced these memories and she said that she had just continued with the party. She said that she had not exhibited any physical symptoms." 64 A second witness, Ms Glenda Gilmore, who was a teacher of the complainant's stepson, swore an affidavit and said that another teacher at the school, Ms Julie Sheppard, became the friend and confidante of the complainant. She said that Ms Sheppard had shown her a letter written by the complainant. Ms Gilmore said: "The letter included a statement by [the complainant] that she had recently begun experiencing very disturbing distress. She said that this distress was being caused by her having very recently remembered being sexually abused by her brother, [PV], when she was a child. She said that these memories were only just coming back to her for the first time." 65 Ms Sheppard swore an affidavit about her conversations with the complainant about the complainant's stepson. She indicated that the complainant had written a letter to her and annexed that letter to her affidavit. She referred to the evidence of Ms Gilmore and said that the letter annexed to her affidavit was the only letter she had shown Ms Gilmore. That letter made no reference of the character identified in Ms Gilmore's evidence. 66 The complainant swore two affidavits in this Court. She asserted that she had always remembered what had happened to her and had never said that she had "only recently remembered it". She said that she had no recollection of writing a letter of the character to which Ms Gilmore referred. 67 Dr Andrew Gibbs was shown the affidavit of Ms Gunn and found that the evidence about the recent revival of the complainant's memory that Ms Gunn gave was consistent with his earlier opinion, which he reiterated forcefully. He said that the new evidence was consistent with his conclusion that this was a case of recovered or restored memory. 68 None of the deponents were cross-examined in this Court. 69 The Appellant's submission in this Court does not assert that the fresh evidence was such as to require the rejection in its entirety of the complainant's evidence. Nor was it submitted that the exercise of a discretion under s137 should have led to the exclusion of the evidence. It was submitted that this was evidence which may have assisted the accused's case by having "a further impact on the jury's assessment of the complainant's reliability which might have rendered that evidence of even lesser weight, so that even when combined with the evidence given by [SV], it was still insufficient to establish guilt in relation to the fifth count on the indictment." Nevertheless, the Appellant conceded that as the jury only convicted where there was corroboration, the new evidence "is not of compelling force". 70 The new evidence goes only to credit. By reason of the denial by Ms Sheppard, an independent witness, the evidence of Ms Gilmore is entitled to little weight. In the absence of cross-examination in this Court of either the complainant or Ms Gunn, it is difficult to assess what, if any, impact that evidence would have had in the case, if admissible at all. The evidence of Ms Gunn has probative value, however, I am not able to conclude that if taken into account with all the other evidence, it may have given rise to a reasonable doubt about the complainant's veracity. 71 In the case of "fresh evidence", an appropriate formulation of the applicable test is whether, if the new evidence had been before the jury, there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant (Gallagher v The Queen (1985) 160 CLR 392 at 396, 400-402; R v Hemsley (NSWCCA, 8 December 1995, unreported). The onus is on the Appellant to establish that the absence of the evidence resulted in a miscarriage of justice. 72 In my opinion, the Appellant has not discharged that onus. The jury did not convict on the uncorroborated evidence of the complainant. The new evidence as presented to this Court does not have sufficient force to have led the jury to conclude that the complainant's recollection was in fact a recent one. I do not believe that there would have been a significant possibility of an acquittal if the evidence of Ms Gunn and Ms Gilmore had been before the jury. 73 Alternatively, the Crown submitted that the evidence was not admissible. The new evidence is relevant only to the complainant's credibility and, the Crown submitted, is inadmissible by s102 of the Evidence Act. This "credibility rule" is subject to the exceptions in Part 3.7. The Appellant invoked s103 and s106. 74 Section 103 refers to evidence adduced in cross-examination. The new evidence of Ms Gunn and Ms Gilmore is sought to be adduced as evidence in chief. Section 103 is inapplicable. 75 Section 106 relevantly provides: "The credibility rule does not apply to evidence that tends to prove that a witness: (a) is biased or has a motive for being untruthful, or (b) has been convicted of an offence, including an offence against the law of a foreign country, or (c) has made a prior inconsistent statement, or (d) is, or was, unable to be aware of matters to which his or her evidence relates, or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth, if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence." 76 The issue turns on the proper construction of the words "unable to be aware of matters" in s106(d). Section 104 is relevant: "(1) This section applies only in a criminal proceeding and so applies in addition to section 103. (2) A defendant must not be cross-examined about a matter that is relevant only because it is relevant to the defendant's credibility, unless the court gives leave. (3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant: (a) is biased or has a motive to be untruthful, or (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates, or (c) has made a prior inconsistent statement." 77 As can be seen s106(a) and (c), relating to bias and prior inconsistent statements, are in identical terms to s104(3)(a) and (c). There is however a significant difference between s104(3)(b) and s106(d). The former extends to a case where an accused is or was "unable to be aware of or recall matters to which his or her evidence relates". The italicised words "or recall" are excluded from s106(d), so that it applies only to matters of which a witness was "unable to be aware". 78 This is an important distinction for present purposes. The substance of the new evidence sought to be adduced is an inability to recall, i.e. the complainant had only recently remembered. It is not of a character which falls within the concept of inability "to be aware". 79 The suggestion has been made that the omission of the words "or recall" in s106(d) may have been inadvertent. (See Odgers Uniform Evidence Law 4th ed par 106.6). The issue is whether this Court should construe s106(d) as if it applied to recollection as well as awareness. 80 There is a line of authority which suggests that the Court may sometimes "read words into an Act". On my reading of the authorities, and I acknowledge that this is not the only possible reading, this is not an accurate description of what is involved in the process of interpretation that is sometimes so described. (See my discussion of the authorities in R v Young (1999) 46 NSWLR 681 at [5]-[32]). 81 It is no part of the function of a judge to supply words believed to have been omitted by the legislature per se. What a court does is to construe the words actually used by the legislature, with an effect as if certain words appeared in the statute. The words so 'included' reflect in express, and therefore more readily observable, form, the true construction of the words actually used. 82 The task of the courts is to determine what Parliament meant by the words used, not to determine what Parliament intended to say (see the authorities collected in Young supra at [5]). The task is to interpret the words of the legislature, not to divine the intent of the legislature (see State v Zuma (1995) 4 BCLR 401 at 402; Matadeen v Pointu [1999] 1 AC 98 at 108). 83 In a passage which has been frequently applied by Australian courts (see the authorities referred to in Young supra at [10]), Lord Diplock formulated three conditions for the process of "reading" words into an Act (Wentworth Securities v Jones [1980] AC 74 at 105). However, the opening words of the frequently cited passage by Lord Diplock include: " … the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it." 84 To similar effect are the references as to how a provision should be "read" in the course of "adding or omitting words" as part of an "interpretative function" or a process of "interpreting a statute", in the application of Lord Diplock's conditions by Lord Nichols of Birkenhead delivering the judgment of the House of Lords in Inco Europe v First Choice Distribution [2000] 1 WLR 586 at 592. 85 In Inco the court took words of general application, namely "any decision of the court under that Part" and found that the particular composite phrase did not extend to the full scope of the dictionary definition of the words used. As a matter of construction, the phrase "under that Part" was read down so that it applied only to some sections in the particular Part of the Act. 86 The most frequently cited authority on legislative inadvertence in Australia, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 also involved a process of reading down words of general application, a recognised process of statutory construction (see Young supra at [17]-[22]). 87 The process remains one of construction if the words actually used by the Parliament are given an effect as if they contained additional words. That is not, however, to "introduce" words into the Act. It is to construe the words actually used. Interpretation must always be text based. The reformulation of a statutory provision by the addition or deletion of words should be understood as a means of expressing the court's conclusion with clarity, rather than as a precise description of the actual process which the court has conducted. 88 The authorities which have expressed the process of construction in terms of 'introducing' words to an Act or 'adding' words have all, so far as I have been able to determine, been concerned to confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest. I am unaware of any authority in which a court has 'introduced' words to or 'deleted' words from an Act, with the effect of expanding the sphere of operation that could be given to the words actually used. This was the actual issue in Young. There are many cases in which words have been read down. I know of no case in which words have been read up. 89 The introduction of the words "or recall" into s160(d) would expand the sphere of operation of that section. It is not, in my opinion, a permissible process of statutory construction. 90 In any event the conditions identified by Lord Diplock in Wentworth v Jones supra at 405 are not satisfied here. It is not "apparent" to me that the drafter has "omitted to deal with an eventuality that required to be dealt with if the purpose of the Act was to be achieved". 91 I do not believe that this Court can be sure that Parliament intended s106(d) to have the same operation as s104(b). There is a distinction between s104 and s106. The former applies to cross-examination of an accused. The latter applies to the introduction of evidence contradicting the evidence of a witness, including that of an accused. Parliament may not have taken the same attitude to evidence by one person about another person's ability to recall as it did to cross-examination of an accused about his or her own ability to recall. The two sections have different purposes. (See McNicol "Credit, Credibility and Character under the Evidence Act, 1995 (NSW) and (Cth)" 1999 23 CrimLJ 339 at 346-352). 92 In my opinion the evidence sought to be used was not admissible. Accordingly, for two alternative reasons, this ground of appeal should be dismissed. Appeal against Sentence 93 The Applicant was sentenced to a period of two years with a very short non-parole period of three months. It was submitted that by reason of delay he was exposed to punishment as an adult and to a sentencing regime which it was submitted was "harsher" than that which existed in New South Wales at the time the offences were committed. The Court was referred to no authority in support of the proposition that sentences should be in accordance with practices at the time an offence was committed, rather than in accordance with practices at the time of conviction. I see no reason why this Court should establish such a principle for the first time. 94 I do not understand how a court would go about determining what it would have done twenty years before. The balance between the various objects of sentencing - deterrence, retribution, rehabilitation - does vary over time. The proposition for which the Appellant contends is both artificial and inappropriate. Sentencing should be based on practices extant at the time of conviction. 95 In any event, no information was presented to the Court which suggests that, in any material respect, sentencing practice with respect to this offences are presently "harsher" than they were at the time the offences were committed. Specifically, nothing was presented to the Court which would suggest that, what could very well be regarded as a lenient sentence of two years with a very short non-parole period of three months, would have been regarded at any time as a harsh sentence. 96 Leave to appeal should be granted and the appeal dismissed. Orders 97 The orders I propose are: 1 Appeal against conviction dismissed. 2 Leave to appeal against sentence granted. 3 Appeal against sentence dismissed. 98 SIMPSON J: I have read in draft the judgment of the Chief Justice and I agree, for the reasons given by his Honour, with the orders proposed. 99 SMART AJ: I agree with what the Chief Justice has written as to the conviction appeal and that it should be dismissed. Application for Leave to Appeal Against Sentence 100 There have been significant legislative changes since the offence was committed in 1974. The offences involving criminal conduct sexually have been redefined. The definition of sexual intercourse was widened. The concept of sexual assault was introduced. A greater degree of protection has been extended to children with increased penalties on those having authority over children. 101 Count 5 was laid under s71 of the Crimes Act 1900 which was repealed by virtue of Act 149 of 1985, s5 and Sch 2(10) with effect from 23 March 1986. Section 71 reads: "Whosoever unlawfully and carnally knows any girl of or above the age of ten years, and under the age of sixteen years shall be liable to penal servitude for ten years". 102 The equivalent section under the present Act is s66C(1). The maximum penalty under that section is imprisonment for 8 years. However, under s66C(2) if the child is either generally or at the time of the sexual intercourse only, under the authority of the offender, the maximum penalty is 10 years. That provision was introduced in 1985. 103 Under s71 the Court when sentencing had regard, amongst other matters to the relationship between the offender and the victim. The applicant was five to six years older than his sister. His conduct represented a severe breach of his relationship with and duties to his sister. 104 Section 71 covered a wide range of offences. It included those cases where bonds were given, for example, where a 17 year old boy and a 15 year old girl willingly teamed up and encouraged each other and when a 15 or 16 year old boy and a 14 or 15 year old girl had an ongoing relationship which was not stopped by the parents and it was only because of the birth of a child that the offence became known to the authorities. On the other hand offences on girls between 10 and 12 by young men of 17 to 20 or older men were dealt with quite severely, including where the offenders were uncles, cousins, brothers or close family friends. These are but a few examples. The section had wide embrace and the factual situations it covered stretched from those exhibiting relatively little criminality to those exhibiting very serious criminality. The variations in sentence I have mentioned generally accorded with community standards and expectations. In his written submissions at trial the applicant's solicitor correctly wrote, "There can be no doubting that the prisoner has been convicted of a very serious crime". 105 Even though the judge was imposing a sentence in May 2000 he was required to assess the applicant's criminality as at the date of the commission of the offence in 1974. That means taking into account the applicant's subjective features as at that date. The judge noted that the applicant was aged 18 at the time of the offence and had recently joined the Army. He came from a dysfunctional family. He had no previous convictions. If the applicant had been dealt with in late 1974 or 1975 the question of his rehabilitation and his then character would have been important. We do not know what would have been recommended. As at May 2000 the question of rehabilitation did not arise as the sentencing judge pointed out. 106 While I would not regard it as decisive I would take into account the sentence which would have been imposed for the offence in 1974 or 1975. The weight to be attached to that factor, if any, will depend upon the circumstances including the mitigating factors which emerge. This is of some importance where the legislation governing the offence has been repealed. It is useful to do so as a check as to the correctness of the sentence intended to be imposed. 107 The judge correctly had regard to the position which existed in 1974 when the offence was committed and the applicant's present position. There are practical difficulties in trying to recapture the situation which existed 25 years ago. Reference to the odd decided case may not be helpful in trying to obtain an overall picture. While it is not perhaps the best source, there are judges who have a reasonably good recollection of the practice in the Courts and the sentences imposed in the period 1965-1980. There are judges who do not have such knowledge. If there is no substantial evidence as to that practice and the sentences and the judge is not aware of them then they obviously cannot be taken into account. 108 I do not have difficulty in recalling the approach of the Courts when sentencing for offences of carnal knowledge in the period 1965-1980. The case presently in question would have been regarded as a serious instance of carnal knowledge and attracted a substantial sentence. The sentence imposed by the judge would have been regarded in the 1970's as unduly lenient, having regard to the facts then known and the absence of the exceptional subjective features which now exist. 109 Frequently, when there has been a delay of 25 years between the date of the offence and the date of sentencing the subjective features have changed considerably. That has happened in the present case. If the judge had not taken into account the needs of the applicant's wife for extended care the applicant would have received a higher sentence including a much higher non-parole period. 110 In the present case the judge's approach to sentence was correct in that he assessed the applicant's criminality at the time of the offence and then took into account the applicant's subjective features existing at 1974 and today. The sentencing judge would not have been aware of the sentences being imposed in 1974 for an offence such as the present one. 111 The judge correctly considered the question of delay. A long time had passed between the commission of the offence (1974) and May 2000, when he was imposing sentence. The trial had taken place in March 2000. The judge referred to R v Todd [1982] 2 NSWLR 517 at 519 where Street CJ stated that delay was a relevant factor to be considered. That case dealt with a different situation but the approach of Street CJ in Todd was approved by the High Court of Australia in Mill v The Queen (1988) 166 CLR 59 at 64 and 66. Inter alia, Street CJ said at 519-520: "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given … … to the fact that sentencing for a stale crime, long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner". 112 Factors that have often been said to be relevant are the rehabilitation, if any, and the record and conduct of the offender during the extended delay and him being in a state of uncertain suspense as to what will happen to him when he comes up for sentence. 113 In the present case two aspects of delay require consideration, namely the delay from the offence in 1974 to December 1996 when the complainant went to the police or perhaps January 1997 when the police spoke to the appellant and from January 1997 until March 2000 when the trial was held, that is, the delay in bringing the offender to trial. 114 In R v Holyoak, (1995) 82 A Crim R 502 Allen J said that whether a lengthy delay between the date of commission of the offences and the date of conviction was a detriment suffered by the applicant depended upon the circumstances of the case. He pointed to the two extremes, namely the offender who waits appalled at what he has done, an emotional wreck fearful that at any time the police will come and the offender untroubled by his offences, lacking any remorse and confident that they will never come to light because the victim will never talk about them and enjoying unwarranted acceptance in his respectable and stable lifestyle. 115 In R v Dennis, (unreported CCA 14 December 1992) James J speaking for the Court and following what the Court had said in DJM, (unreported, CCA 13 August 1992 per Badgery-Parker J) stated: "It is not infrequently the case that sexual offences committed against a child of which only the offender and the child have knowledge, are first revealed by the child to a third person only years afterwards when the child has attained a certain level of maturity. In such cases the mere passage of time between the committing of the offences and the disclosure of the offences and the apprehension of the offender is of little weight as a factor in mitigation of penalty". 116 In DJM Badgery-Parker J commented that the delay overall from the commission of the last of the offences in 1983 to sentencing in 1992 was extraordinary. He attached particular importance to the delay between the time when the offences came to notice in 1987 and the sentencing in 1992. He thought that the delay presented real problems to the sentencing judge. 117 In the present case the sentencing judge referred to these authorities. He thought that the case did not fit within either of the extremes outlined by Allen J in Holyoak. The judge found that the applicant went on for years confidently believing that his crime would not be reported. The judge pointed out that one of the applicant's brothers, as well as the victim was aware of the crime. The family kept quiet so that the revival and reporting of the matter must have come as a surprise. The judge thought that the evidence of the brother may have been a significant factor in the jury reaching its conclusion. 118 The judge decided that some discount must be given for the delay in the revelation of the offence, although possibly not as great a discount as would have been the case if others had not known of the offences and kept quiet about them. The materials reveal that the applicant assisted his younger siblings when his mother neglected them because of a lesbian relationship into which she entered. At one point relations between the applicant and his sister were good. 119 The delay between 1997 and 2000 was explained in part by there having been an aborted trial. This would have increased the pressures on the applicant especially as he was struggling to care for his wife who was seriously ill and suffering much pain. The judge took into account that the applicant would serve any sentence in protection where the conditions of imprisonment are more severe. 120 The judge found that the needs of the applicant's wife brought the case within the range of circumstances that could truly be described as exceptional. He found that the imprisonment of the applicant would impose exceptional hardship on his family. 121 Having considered the question of sentence at some length I am persuaded that the judge did not err. I am further persuaded that the judge imposed a very lenient sentence and that he could not reasonably have imposed a lesser sentence. 122 Leave to appeal against the sentence should be granted but the appeal should be dismissed. ******** 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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