New South Wales Court of Criminal Appeal CITATION : REGINA v S [2003] NSWCCA 122 HEARING DATE(S) : 18 December 2002, 5 March 2003 JUDGMENT DATE : 5 May 2003 JUDGMENT OF : Mason P at 1; James J at 110; Dunford J at 115 DECISION : Appeal allowed. Conviction and sentence set aside. New trial ordered. CATCHWORDS : Appeal - criminal law - aggravated sexual assault - whether evidence of motive to fabricate false allegation of sexual assault excluded - need for counsel to formulate lines of future questions clearly - Evidence Act, s44(2)(b) - what is requisite to enable court to be satisfied that the document being used to cross-examine a witness will be admitted - whether judge entitled to be informed that document is not that of witness being cross-examined before witness is confronted with it - whether unfair criticism of counsel caused trial to miscarry - damaging admission - attempt to explaint cut short - proviso. (ND) PARTIES : REGINA v S FILE NUMBER(S) : CCA 60474/2002 COUNSEL : Appellant: S J Odgers SC/ A Francis Respondent Crown: GIO Rowling SOLICITORS : Appellant: Everingham Solomons Respondent: S E O'Connor (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT DC 01/31/0265 FILE NUMBER(S) : LOWER COURT Judge J X Gibson QC JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60474/02 MASON P JAMES J DUNFORD J Wednesday 5 May 2003 REGINA v S Judgment 1 MASON P: On 25 March 2002 the appellant was indicted before His Honour Judge J X Gibson QC at Tamworth District Court on a count of aggravated sexual assault by digital penetration of the anus, the aggravating feature being that he maliciously inflicted actual bodily harm on the victim immediately before the sexual assault. The appellant pleaded not guilty. The jury returned a verdict of guilty on 28 March 2002. 2 A sentence of imprisonment for a term of two years and six months with a non-parole period of 12 months was later imposed, commencing on 5 July 2002. This sentence had been partially served when, following the first day of hearing in this Court on 18 December 2002, bail was granted pending the determination of the appeal. 3 The appellant and the complainant had married in October 1995. They separated in 1997 and were divorced in October 1998. The offence allegedly occurred on 30 April 2001. 4 In January 1997 the appellant suffered severe injuries in a motor vehicle accident. His chest was crushed, his diaphragm damaged, his stomach muscles torn and his spinal cord completely severed, resulting in paraplegia from his nipples downwards. In consequence, at the time of the alleged assault, he weighed 120 kilograms, with much of his weight distributed to his shoulders and arms. He used a wheelchair but had developed significant strength and agility. 5 The issue fought at trial was whether the physical and sexual assaults happened at all. It was not suggested that there was consent or a belief of consent. The credibility of the complainant and of the appellant were the key matters for the jury. It was put to the complainant that she had fabricated her allegation, inter alia with a view to getting compensation from the Victims Compensation Tribunal. 6 It is convenient first to summarise the defence case. 7 In his evidence at trial, the appellant said that the complainant had been to his house on numerous occasions in the four and a half years since he had moved there. He agreed that she had come on the day in question, but said that she never entered the house. She was crying and said that she had been to her mother's grave. He asked her to leave and she did. He denied any sexual or other assault. 8 I have given a very abridged version of the defence case at trial. It was not accepted by the jury. The appellant does not suggest that the verdict was unreasonable in the sense indicated in s6 of the Criminal Appeal Act 1912. 9 The Crown case rested upon the evidence of the complainant as corroborated by evidence as to complaint and medical evidence. 10 The complainant said that she went to visit the appellant at his invitation, arriving at around 1.30pm. He was at the front of the house when she got there and she went inside at his request. He made her coffee and they talked in the front lounge room. When she finished and was about to leave he said that he wanted to suck her breasts. She said: "No you don't – I haven't got a ring to say that you can do that or a piece of paper". Her evidence as summarised in the Crown submissions was as follows: He grabbed the complainant by the back of the head and pulled her down forcibly to the side. She was crying and her neck hurt. He threatened to smack her or hit her if she didn't let him suck her breasts: T 11. Her nose was running and he allowed her to get a tissue, but after she sat down on another chair in the front room, he came over to where she was sitting: T 12. He threatened to hit her if she didn't stand up. He told her to take off her jumper and bra: T 13. She did so and he hit her breasts very hard twice on each side and bit her left nipple very hard: T 14. He told her to put her legs on either side of him while he was sitting in his wheelchair. When she did this, he asked her to put her arms around him and kiss him like she used to when they were married. She did all of this because she was fearful of her life: T 14. After she kissed him once, he hit her across the face and said, "do it again". She kissed him again: T 14. She tried to think of a way to escape and told him she needed a Panadol. Instead of letting her go alone to the bathroom where the Panadol was kept, he wheeled them towards the hallway to the bathroom and then followed her into the bathroom after she got off the wheelchair. She took out three packets of tablets. He watched her take one Panadol: T 15. He then asked her to pull down her leggings and underpants and put her hands on top of her head. After she did this, he slapped her breasts again very hard, grabbed her left nipple, punched her in the pubic bone area and pulled her clitoris very hard: T16. The front of her leggings was ripped. He ripped them "probably before we went to the bathroom": T16. While in the bathroom, he told her to lean across his legs with her bottom in the air: T16. She could see that he was going to digitally penetrate her anus: "I sort of was a bit freaked and I squeezed my bum cheeks together and I said, "If you're going to do that, use lubrication": T17. He spat on his fingers and put two fingers up her anus very hard two or three times. She gritted her teeth and cried: T17. He told her to pull up her underpants and leggings and go into his bedroom, which she did. He gave her a pair of blue tracksuit pants to wear. He retrieved her bra from the lounge room and she put that on but not fully. He gave her a black "boob tube" and denim dress to wear. The dress however did not fit: T18. She tried on the "boob tube" after asking him which way round it went. She finally ended up wearing the track suit pants, her bra and jumper, shoes and socks: T18. He told her not to mention what had happened to the police or anyone else and she said that she wouldn't. He wanted another kiss so she kissed him. He grabbed her head again "very hard" and said, "Have a nice afternoon": T 18. As she was about the leave, she received a telephone call. She said it was about 3pm. She was very upset at that stage and the Appellant was right next to her. The caller, Mr Luck, asked what was wrong because she sounded upset to him. She said, "I just came back from my mother's grave out at Lincoln Grove" and that she was at a friend's house, Donna Singleton: T19. Mr Luck's Optus telephone bill (Exhibit C) established that this telephone call occurred at 3.10pm on 30 April 2001: Tr 114, 131. The complainant left the Appellant's house, taking her ripped leggings. She saw his mother arrive in the driveway as she left: T 19. 11 The complainant drove to the house of a friend, Donna Singleton, arriving in a visibly distressed condition. She showed her bruised left breast and made a complaint the details of which are addressed below in relation to Ground 3. The two women drove to the Tamworth police station where there was a complaint of sexual assault. This latter evidence was corroborated by the police officers involved. 12 The complainant was examined that evening by a general practitioner, Dr Kennedy. Photographic and other evidence attested to the fresh bruising in the upper body and left buttock. She repeated her complaint of sexual assault to Dr Kennedy and again to Dr Grotowski who was a member of the sexual assault crisis team who interviewed her three days later. The medical evidence from the two doctors was that the observed injuries were consistent with the history given by the complainant. 13 Again I have truncated the Crown case. It was challenged in a number of details. But it was clearly open to the jury to accept it, as they did. 14 An affidavit from trial counsel for the defence, Ms Francis was read in the appeal, without challenge. She referred to lines of defence that would have been pursued at trial in cross-examination and by the calling of witnesses had it not been for the trial judge's rulings. 15 With this background I turn to the grounds of appeal. Ground 1: The trial judge erred in excluding evidence of motive to fabricate a false allegation of sexual assault 16 In cross-examination of the complainant, defence counsel sought to raise the issue of motive to fabricate the allegations of assault. It was put to the complainant that she was seeking to obtain financial compensation and was motivated to lie in aid of that goal. 17 One strand of this cross-examination related to the possibility of a claim under the Victims Support and Rehabilitation Act 1996. Counsel put it to the complainant that she was aware of the Victims Compensation Tribunal and the complainant agreed that she had heard of that body. This line of questioning was taken no further. 18 The other strand of cross examination was developed somewhat more fully, but again the sting of the allegation was left somewhat hanging. The first ground of appeal asserts nevertheless that the cross-examiner was wrongly prevented from developing this line of attack on the complainant's credibility. Wakeley & Bartling v R (1990) 93 ALR 79 was cited to support the proposition that counsel should be given leeway and not required to get to the ultimate goal by the shortest route. 19 The relevant passage in the evidence was as follows (Tr pp96-98): Q. You're aware aren't you that the accused is due to receive in excess of a million dollars worth of compensation from his car injury? A. I knew he was – I knew he was entitled to some money but I didn't know how much. Q. You'd had discussions with him hadn't you that he was to receive in the order of about 3 million dollars? A. No. All I knew is that he was entitled to some compensation 'cause I was still legally married to him when he had his accident. Q. And at the time that you were legally married to him you indicated to him didn't you that you'd spoken to a solicitor from Legal Aid and that they had indicated to you that you weren't entitled to any of his money, but you loved him anyway? HIS HONOUR: What's the relevance? FRANCIS: It goes to motive your Honour. HIS HONOUR: Motive? What's the motive that it goes to? FRANCIS: That if there's any fabrication involved in respect to the complaint that the possibility of compensation in respect to it is a live issue in this case your Honour. HIS HONOUR: Compensation? There's a court for compensation in relation to criminal injuries? FRANCIS: Yes your Honour. Intend to ask the witness some questions about that as well your Honour. HIS HONOUR: As well? FRANCIS: Yes sir. HIS HONOUR: Well I don't think it's relevant to establish whether she's made a claim or not quite frankly. You can ask her that. WITNESS: She can ask me --- HIS HONOUR: No look --- FRANCIS: Q. You're aware of the Victims Compensation Tribunal? A. I don't think so. Q.. And you had dinner with him at your father's house? A. I don't think so. Q. And you had dinner with him at your father's house? A. Not that I can remember. Q. You'd had occasion to see the accused regularly since he had his accident since 1997? A. I was still – I got a phone call from his mother in regards to his accident 'cause I think I was living at my mother's or my father's place now at this stage saying that --- 20 It can be seen that the cross-examiner elicited from the complainant that, some time prior to the complaint, she knew the appellant was entitled to an unknown sum of money as compensation for his motor vehicle injury. 21 The question commencing "And at the time that you were legally married" was neither rejected nor pressed. It was left hanging, probably because counsel was deterred from pressing it by his Honour's indication that he did not think it relevant to establish whether or not the complainant had made a claim upon her husband referable to the compensation moneys due to him. 22 The affidavit from trial counsel indicates that her instructions were that the complainant had told the appellant, whilst he was hospitalised, that she had sought legal advice in respect of her entitlement to the compensation exceeding $1 million that he was about to receive arising from his accident and her marriage to him at the time. The question that was left hanging was said to have foreshadowed a line of defence to the effect that the complainant had a particular need of money at the relevant time (namely to buy her sister out to purchase her father's house when he passed away); and that she knew on legal advice (from Legal Aid) that she was not entitled to any of his compensation money because the couple had separated before the accident. 23 According to trial counsel, it was then going to be suggested that the complainant was motivated to fabricate the alleged sexual assault in order to obtain substantial compensation from the appellant (Affidavit par 9 (g)). Counsel states that the "ruling" that it was not relevant to establish whether or not the complainant had made a claim on the appellant cut short this line of cross-examination. It also meant that, when the appellant's mother was called as a witness for the defence, counsel asked her no questions to establish that she had witnessed a conversation between the couple in hospital to the effect that the complainant had sought legal advice in respect of her entitlement to the compensation. 24 The judge's words "You can ask her that" were interpreted by trial counsel as meaning that she could pursue questions about the Victims Compensation Tribunal, but not questions about whether or not the complainant had claimed a share of the accident compensation moneys. Later discussion between defence counsel and the judge confirmed this interpretation of his Honour's ruling (Tr pp200-1). 25 The issue for this Court is to determine whether a line of admissible questions was stopped by the judge and whether this caused a substantial miscarriage of justice. In my view, each question should be answered in the negative. 26 It was nowhere suggested (at trial or in trial counsel's affidavit) that the appellant had refused to share any of his compensation money with his former wife or that such a refusal stung the complainant into making a false allegation of sexual assault. On the contrary, the cross-examination was directed towards the goal of establishing that the complainant was motivated to lie in order to obtain compensation from the appellant out of his motor accident verdict moneys. How this could have come about is neither explained nor apparent. 27 Resolution of these issues is complicated by trial counsel's failure to clarify the line of questioning she was pursuing in cross-examination of the complainant. It is therefore far from clear what was ruled to be irrelevant and what further questioning or evidence was blocked thereby. 28 In the course of discussion later in the trial (Tr p202), his Honour told counsel: You can by all means, suggest that she did these things because she was trying to get money from him. She has denied it. You can suggest it. You don't have to prove anything. The Crown have to disprove it. 29 These remarks went to what counsel could say in final addresses. They also tend to confirm that the judge at least appreciated that the complainant had been cross-examined to the extent of suggesting a motive to lie associated in some way with the accident compensation moneys. 30 One suspects that trial counsel may have wanted to suggest that the complainant formed an intention to lie because she was either frustrated at her inability to get a share of the accident compensation moneys or, possibly, because she was prepared to use the threat to lie in order to extort a share. But these were serious allegations and counsel's failure to press the matter at trial or to spell it out in her affidavit may reflect a gap or ambiguity in her instructions. 31 The persuasive onus rests upon the appellant. I am unpersuaded that admissible questions were stopped or that a substantial miscarriage of justice ensued. I would therefore reject the first ground of appeal. Ground 2: (Not pressed) Ground 3: The trial judge erred in rejecting a submission that Donna Singleton could be cross-examined about the contents of a previous representation made by the complainant Ground 4: The trial judge erred in declining to direct the jury that defence counsel had not acted improperly 32 The two grounds are related. 33 The complainant said that she "went straight around to Donna Singleton's house", which was not far from where the appellant lived (Tr pp19-20). She then gave the following evidence in chief (Tr pp20-1): Q. When you got there, where was Donna Singleton? A. She was across the road talking to one of her friends and I called her over because I was in hysterics after what happened and she asked me what was wrong and I said "I can't say" and --- Q. What did she then do? A. Then she asked me again and – because I was crying and shaking, like very shooken up and I just asked her well I'll show – I showed her what happened but I didn't show it in front of her son or her son's friends, so we went into the bedroom and I showed her the left breast that was bruised. Q. Right. And did you say anything else to her about the clothing you were wearing at that stage? A. No she didn't. I basically changed out of Murray's tracksuit pants back into my leggings 'cause she sewed them up for me, and I told her to do what she wants with the tracksuit pants. And then she rang up a domestic violence 1800 number because I was that terrified, I didn't know what to do, and then explained to the lady on the other line about what happened, and then she basically told me to report it to the police and go into a refuge, like a women's refuge. But I was living at my father's at that stage. Q. So after you'd had this conversation with the counsel [sic] what did you then do? A. I went – Donna followed me, I went to pick up my son from a family day care at a lady's house and dropped him off at his auntie's place over in South Tamworth, to drop him off and then I went to the police station. Q. What time did you get to the police station? A. Would have been probably roughly after 5 o'clock. Q. So how did you get to the police station? A. I drove and Donna Singleton followed on behind in her car. See also cross-examination at Tr pp93-4. 34 At the police station there was a complaint of physical and sexual assault and the complainant was sent to the Tamworth Base Hospital for medical examination by Dr Kennedy. 35 The complainant was not cross-examined about her conversations with Donna Singleton on 30 April 2001 beyond being asked to confirm that the only injury she showed to Ms Singleton was her left breast (Tr p94). Presumably matters were left where they were because the defence wanted to run the argument that sexual assault was not mentioned and that this showed that sexual assault had not occurred. 36 Let it be assumed that this option was open notwithstanding the possible application of the principles of fairness embodied in the rule in Browne v Dunn (1893) 6 R 67. If matters had been left there, one would have thought that the defence case had not advanced very far. After all, the complainant was in an hysterical state and she showed her bruised left breast to Ms Singleton before the latter rang a domestic violence 1800 number and accompanied her to the police station. The evidence of Ms Singleton (summarised below) clearly showed that the two women had talked together for a lengthy period, so the complainant's version in her evidence was obviously highly abbreviated. Nevertheless, the complainant's own evidence allowed the argument to be put that an allegation of physical assault had developed into one of sexual assault between the first discussion with Ms Singleton and the arrival at the police station. (It is curious that no such argument appears to have been put to the jury: no reference to it appears in the summing up.) 37 On 1 May 2001 the complainant gave a detailed written statement to the police. It was never put into evidence at the trial. But it was available to the defence at all material times and the complainant was asked several questions in cross-examination about portions of it. 38 Paragraph 40 of the statement included the following (deleting certain names): I talked to Donna about report (sic) this to the police and I finally decided to report that Murray had assaulted me. I didn't tell Donna that Murray had also sexually assaulted me. Donna organised a babysitter for … and then followed me in my car to pick up my son… from his babysitter…. 39 This part of the statement was not adverted to during the cross-examination of the complainant. 40 When her cross-examination was completed the complainant was excused. 41 The next witness was Ms Singleton. She gave evidence in chief about the complainant arriving at her home, shaking and very scared. The complainant burst into tears but was unwilling to say what had happened. She showed Ms Singleton her torn tights and Ms Singleton sewed up the crotch where it had been ripped. After a cup of coffee the following occurred, according to Ms Singleton's evidence (Tr p105): Q. Right, and what was the next thing that happened? A. I asked her the question again, I said "What's wrong" and she said she couldn't tell me, and I said "Look you may as well tell me now than later" and I gave her time, about half and hour, or an hour and a half later she came back and told me what happened. Q Did she show you something? A. Yes she did. Q. And how did that come about? A. Well she told me that her ex-husband raped her and then she went to go and put her pair of tights on and she said "Look come in and I'll show you". She didn't want to show in front of my kids and I said "Right, come in to the bedroom" and she showed me what he had done to her. Q. What did she show you? A. She showed me the bruises on her, like her breasts and where he hit her. Q. And what was the next thing that happened? A. Then she burst into tears. I said "Well come back out here" and I said "while we ring the domestic violence phone call" so I was talking to the lady on the phone and then I handed the phone to her and the lady said "It's the best thing to do that, to go and report it to the police". 42 The evidence in cross-examination on this issue is ambiguous (see Tr pp106-7). I read Ms Singleton's answers as asserting that the complainant did not originally say in as many words that the appellant had raped her. Rather, this was elicited by a direct question to that effect from Ms Singleton. The answers were however somewhat confusing and, when there was no re-examination by the Crown Prosecutor, his Honour entered the fray. It is necessary to set out his questions and the further cross-examination that ensued before addressing the precise issues raised in Grounds 3 and 4: HIS HONOUR: Q. Well I've got a question. You told this court that the complainant told you that her husband had raped her. That was your word wasn't it? A. Yeah. Q. What did you mean by that? A. I asked her, I said "Did your ex-husband rape you or did he done something else instead of rape?" Q. Yeah, and what did she say to that? A. Well she told me that she got raped and I said "That's different than what", it was different than rape than what other things that he done. Q. Well I'm sorry, I still don't understand? A. Well she told me that she'd got raped, and I didn't believe it. Then I asked -- Q. What happened then? A. I asked her again "Did he rape you" and she told me "Yes". Q. Yes, and what were the other things that you understood that were different. A. The ones that I understood I said it was different than rape to say sexual harassment or things like that. Q. Did she use the word "rape"? A. Yes she did. Q. Did she tell you what the actions were that her husband performed on her? A. No. Q. Well I'm still trying to understand why you said that she didn't tell you? A. Well I didn't ask --- Q. That she was raped? A. Well she told me that she got raped and -- Q. Yeah and you didn't believe her, I understand that? A. Yeah I didn't believe her, but I didn't go --- Q. What did she say after that? A. She didn't say nothing after that because she burst into tears and she was scared and I didn't want to go into more details because it wasn't my business. HIS HONOUR: Anything arising out of that? CROWN PROSECUTOR: No your Honour. FRANCIS: Yes your Honour. FURTHER CROSS-EXAMINATION Q. The complainant, and you've already given this evidence, the complainant never said that her ex-husband had raped her did she? A. Yes she did. Her ex-husband told – J…… told me that her ex-husband did rape her but I didn't believe him, believe her and I didn't want to go into any more details because it wasn't my business. Q. You see when I asked you a question --- A. Yeah I got a little confused. Q. Maybe if you could read this paragraph, paragraph 40 and just read that to yourself and indicate if you'd like to change your evidence? CROWN PROSECUTOR: Your Honour, the witness is being shown the statement of the complainant, not the statement of the witness. HIS HONOUR: Oh come on. FRANCIS: Section 44 your Honour, the representation --- HIS HONOUR: Section 44. Well what does section 44 say? FRANCIS: The complainant has already given evidence that she didn't --- HIS HONOUR: Just a moment, just be quiet for a moment please. See you never told this court that that was somebody else's statement. FRANCIS: No your Honour, the provisions --- HIS HONOUR: Why not? FRANCIS: Because I've asked this witness -- HIS HONOUR: I don't care what you've asked this witness. Don't you think that you might let me in on it? FRANCIS: I was trying not to let this particular witness know -- HIS HONOUR: I don't care what you were trying to do. You see I run this court and I'm entitled to know the documents that you're putting into the hands of the witness. FRANCIS: Yes. Section 44 allows -- HIS HONOUR: Look I'm not interested, I'm asking you for an explanation at this stage as to why you didn't tell me what you were doing. FRANCIS: Because, as I understand section 44, I'm entitled to cross-examine the witness about it and -- HIS HONOUR: You may well be, but I'm entitled to know what's going on and the impression that was given was that the document you were giving to her was her statement. FRANCIS: I informed the Crown when they had concerns that -- HIS HONOUR: Well the Crown doesn't run this court, I do. FRANCIS: Yes your Honour. WITNESS: Section 44, I haven't got it there. HIS HONOUR: Q. You're asked to read that particular -- CROWN PROSECUTOR: Your Honour there's a legal issue arising out of this which I really think -- HIS HONOUR: Wait till I just read this first would you? It's the old Queen's rule, yeah. FRANCIS: May I carry on your Honour? HIS HONOUR: Well you already have, you've asked the question. You've been asked to read that particular statement and say do you want to change your evidence. FRANCIS: Q. That statement indicates doesn't it -- HIS HONOR: No, no, no, you can't ask that. You can ask her the question that you did ask specifically, and that's it. FRANCIS: Maybe there should be some legal discussion about it in the absence of this particular witness. HIS HONOUR: No there's no question about it. FRANCIS: A cross-examiner may question a witness -- HIS HONOUR: Please don't, please -- FRANCIS: Is your Honour not allowing me -- HIS HONOUR: I am ruling that the question you asked is the proper question to be asked and that's it. FRANCIS: Your Honour won't entitle me to go any further? HIS HONOUR: No. Q. Now do you want to change your evidence? A. No thank – no. MFI #4 STATEMENT OF COMPLAINANT FRANCIS: Q. And when you indicated now that the complainant did say that she had been raped, there was no further discussion about it at that stage? A. No. HIS HONOUR: Yes, now what's your problem Mr Crown that you want to raise? CROWN PROSECUTOR: Your Honour, it's a matter which really needs to be raised in the absence of the jury. It probably won't come to very much but it's something that needs to be placed on the record. IN THE ABSENCE OF THE JURY CROWN PROSECUTOR: Your Honour, section 44 as I read it says that the cross-examiner may question a witness about a previous representation alleged to have been made by a person other than the witness. HIS HONOUR: Yes, there's been some evidence given about that. CROWN PROSECUTOR: Yes, but as I understand it, what my friend was talking to in paragraph 44 -- FRANCIS: No paragraph 40. Section 44. HIS HONOUR: Section 44(3). FRANCIS: The paragraph I was taking her to, asked her to read was paragraph 40. HIS HONOUR: It's merely the old Queen's case. It's a situation where you can put a document in front of a witness that's not their document and say "Having read that, do you still adhere to your prior evidence" and that's the only question that can be asked and that's clear from the question as well. CROWN PROSECUTOR: Yes your Honour, I don't wish to take it any further because my understanding was that my friend was referring to paragraph 44. HIS HONOUR: Yeah 44, she is -- CROWN PROSECUTOR: Paragraph 44 as opposed to section 44. I couldn't see how paragraph 44 -- HIS HONOUR: Section 44 she's referring to. CROWN PROSECUTOR: No I withdraw the objection. FRANCIS: Your Honour section 44(2) entitles the cross-examiner to question a witness about the representation of -- HIS HONOUR: And it's contents. FRANCIS: Yes, if the representation has been admitted. HIS HONOUR: Yes. FRANCIS: So I'm seeking to cross-examine -- HIS HONOUR: No, you put the document in her hand, not cross-examine her. You put the document in her hand, but once you put the document in her hand, all you can do is put the question that you asked. FRANCIS: Yes. In my submission I'm entitled to question -- HIS HONOUR: Well I reject your submission. You've asked her the only question you could ask her. FRANCIS: Your Honour I might seek some instructions from my client in respect of this exchange that your Honour has had with me in front of the jury. Would you Honour give me -- HIS HONOUR: Well you can take such instructions as you see fit. FRANCIS: Would your Honour give me five minutes? HIS HONOUR: No well I'm bringing the jury back and you can take your instructions at 4.o'clock. IN THE PRESENCE OF THE JURY NO FURTHER RE-EXAMINATION WITNESS RETIRED AND EXCUSED 43 Later that afternoon, not long before 4pm, there was the following exchange in the absence of the jury (Tr pp117-18): HIS HONOUR: Have you got your instructions yet? FRANCIS: Yes your Honour. HIS HONOUR: Yeah, what do you want to do? FRANCIS: Make an application for a discharge of the jury your Honour. HIS HONOUR: Why? FRANCIS: Because your Honour gave the impression to the jury that the accused's counsel had acted dishonestly by not informing your Honour of the author of the statement --- HIS HONOUR: No, not dishonestly. FRANCIS: It was something that I'm entitled to do pursuant to s44. HIS HONOUR: You are entitled to bring it to my attention what you're doing. I decide what the law is, not you and it's not for you to put a statement from somebody else in the witness' hand without informing the court. FRANCIS: Without having meant to have misled your Honour or the court, the issue is that the jury have been given the impression that what I did was improper, and in my submission it was not, it was something that I was --- HIS HONOUR: Well it was, in my opinion it was. FRANCIS: I would ask your Honour to correct – if your Honour's not prepared to discharge the jury and that application is pressed, then to at least indicate to the jury that it was something which the defence counsel was lawfully entitled to do, albeit if your Honour is not of the view that it was done in the proper fashion. HIS HONOUR: No, I'm not going to tell the jury that and I'm not going to discharge them. SHORT ADJOURNMENT 44 Section 44 of the Evidence Act 1995 provides: 44 Previous representations of other persons (1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness. (2) A cross-examiner may question a witness about the representation and its contents if: (a) evidence of the representation has been admitted, or (b) the court is satisfied that it will be admitted. (3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows: (a) the document must be produced to the witness, (b) if the document is a tape recording, or any other kind of document from which sounds are reproduced—the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents, (c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given, (d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents. (4) A document that is so used may be marked for identification. 45 Section 44(1) applied because the cross-examiner was questioning Ms Singleton about the "previous representation" made by the complainant in par 40 of the complainant's statement to the police set out above. 46 Subsection (3) reflects the common law position, based on that part of the rule in The Queen's Case (1820) 2 Brod & Bing 284, 129 ER 976 dealing with cross-examination on inadmissible documents (see Alister v The Queen (1984) 154 CLR 404 at 443, 464). Under that subsection, the cross-examiner was not permitted to identify the document or disclose any of its contents to the jury. But the document had to be produced to the witness, who then had to be asked whether, having read it, she stood by the evidence she had given. Judge Gibson ruled that the cross-examiner could proceed in this manner, so there can be no complaint on that ground alone. 47 However, his Honour made it plain that counsel should have informed him of her intention to proceed even thus far, and he chided her (both in the presence and absence of the jury) for effectively not having sought his permission before showing the document to the witness. 48 In my view, counsel was acting within her rights, even if she may have overlooked the need to inform the judge before taking the next step of revealing the contents of par 40 to the jury in accordance with s44(2) (discussed below). Section 45 of the Evidence Act also gave the trial judge a discretion to require production of the document and to admit it into evidence (see also Alchin v Commissioner for Railways (1935) 35 SR(NSW) 498 at 509). But it did not follow that counsel was at fault in putting the document to the witness without prior permission from the judge, so long as she did not transgress s44(3)(d) by identifying it or disclosing its contents to the jury. 49 Subsection (2) of s44 conditionally lifts the barriers that prevent identification of the document or disclosure of its contents to the jury. It permits the cross-examiner to question a witness about the previous representation and its contents, but only if: (a) evidence of the representation has been admitted; or (b) the court is satisfied that it will be admitted. 50 The complainant's police statement, par 40 in particular, had not been admitted into evidence, so (a) did not apply. 51 The appellant submits that the trial judge erred in preventing the cross-examiner from endeavouring to satisfy the court that par 40 of the document would be admitted later, thus engaging s44(2)(b). 52 One problem confronting the appellant is the absence of material indicating that counsel ever intended or attempted to seek to persuade the court to be satisfied of this. 53 Logically, one should first consider the admissibility of the document, although (as will appear) it is unnecessary to reach a concluded view on that matter. 54 The admissibility issue was addressed at some length by Mr Odgers SC on the appeal. In its ultimate reformulation, the argument went thus: 1. Donna Singleton's evidence that the complainant told her that "her ex-husband raped her" was relevant both to the credibility of the complainant and to the issues (as hearsay evidence relied upon to prove the truth of the complainant's assertion that she had in fact been "raped" by the appellant). The jury were later directed that complaint evidence was admissible as evidence of the truth of the facts claimed in the complaint (SU 23). 2. If the Crown is entitled to rely on evidence that the complainant said she had been raped (to prove she had been raped), the defence must be entitled to rebut that evidence – by adducing evidence that the complainant did not in fact say that she had been raped. 3. Such rebuttal evidence would be relevant both to the credibility of the complainant and to the substantive issue in the trial. It would therefore not only be relevant to the credibility of a witness and would thus not be caught by s102 (to which s106 creates an exception): cf Adam v R (2001) 207 CLR 96. In Adam , the principle was relevant to both credit and an issue (albeit hearsay) and, since not excluded by s102, was admissible under s56 even if it was not admissible for a hearsay use under s59. 55 The Crown submitted that there was no inconsistency between the complainant's oral testimony and par 40 of her statement. Each attested to the fact that no complaint of sexual assault was made to Ms Singleton. In these circumstances, the document was not relevant to the complainant's credibility. 56 The Crown further submitted that par 40 was not admissible as to the issue of sexual assault. It could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding (cf s55). 57 Furthermore, the police statement was a hearsay assertion by the complainant as to what she had (not) done on an earlier occasion. It was a "previous representation" about an "asserted fact" (as defined in s59), namely what was (not) said in the complaint to Ms Singleton. This hearsay problem with the complainant's statement meant that the evidence in par 40 of the statement was excluded by the hearsay rule (s59). 58 The difficulty with this last-mentioned submission of the Crown is that the complainant had personal knowledge of the asserted fact (s62); she was available to give evidence about the asserted fact; and the statement was made when the asserted fact had been fresh in her memory (see s66 and Dictionary, Part 2 cl 4). She was, in my view, available even though she had been excused. 59 The unfairness possibly implicit in the complainant not having been confronted about par 40 of her statement (upon which I express no concluded view) would not render the statement incapable of being admitted. But it will bear on the issue of substantial miscarriage of justice. 60 I return to the Crown's submission that the evidence was not relevant. I cannot accept that submission. Proof that the complainant made par 40 of her statement tended to establish the fact that the complainant spoke to Ms Singleton of a physical but not a sexual assault. If this aspect of her earliest complaint was true, it was material which, if accepted, could rationally affect the jury's assessment of the probability of the ultimate issue in the trial. 61 It follows that par 40 was evidence capable of being admitted. This probably meant that it was open to the court at trial to be "satisfied that it will be admitted" in the language of s44(2)(b). (I simply flag the argument that the latter words might be read as referring to a present, practical reality at that stage of the trial, as distinct from a theoretical admissibility depending on certain additional matters, including making the complainant available by recalling her as a witness.) 62 The transcript is silent as to whether counsel ever intended to seek to satisfy the judge that par 40 was admissible as a prelude to confronting Ms Singleton with its contents in such a manner as to bring those contents to the attention of the jury. Counsel never made such an application. The silence of her affidavit also supports the conclusion that she never intended to do so, at least once her attention was drawn to the distinction between subs (2) and (3) of s44. If in those circumstances defence counsel was stopped in her attempt to confront Ms Singleton openly with the contents of par 40, no miscarriage ensued. The judge ruled that she was free to use the statement in accordance with s44(3). According to the transcript, his Honour assumed the cross-examiner's role by asking the complainant whether she wanted to change her evidence; and receiving the answer "No thank – no" (Tr p110). Counsel chose not to do so, no doubt believing that Ms Singleton would remain firm in her testimony that rape had been discussed. The ruling did not prevent the defence from tendering par 40 of the complainant's statement. 63 Senior counsel for the appellant submitted that trial counsel's reference to s44(2) towards the end of the lengthy passage set out in par 42 above suggests that it was her intention to seek to invoke s44(2)(b). But there is nothing in the transcript or counsel's affidavit to support this. It is true that counsel was interrupted by the trial judge twice when she was endeavouring to inform him of what she was seeking to cross-examine or question the witness about. But I read these interrupted submissions as counsel's endeavour to tell his Honour about her intended line of questioning. Despite the passing reference to s44(2), counsel neither embarked upon nor foreshadowed an attempt to satisfy the trial judge that the written statement of the complainant, par 40 in particular, would be admitted into evidence (cf s44(2)(b), discussed above). 64 Ground 4 addresses the trial judge's refusal to direct the jury that defence counsel had not acted improperly in her manner of cross-examination of Ms Singleton. Having failed to have the jury discharged, counsel asked his Honour, "to at least indicate to the jury that it was something which the defence counsel was lawfully entitled to do, albeit if your Honour is not of the view that it was done in the proper fashion". 65 The appellant submits that there was every risk that the jury would conclude that his counsel was attempting to trick the trial judge by not informing him what she was doing, and giving the false impression that she was using the witness' statement rather than someone else's. This would colour the jury's assessment of the client's credibility. 66 The remarks in the absence of the jury (Tr p117-8) that are set out above show that the judge held a firm view that counsel had acted improperly. This confirms the impression one gets from reading remarks such as "oh come on" in the earlier passage in the presence of the jury. 67 It may well be that his Honour was also annoyed because he perceived (probably correctly) that counsel was intending to go beyond asking the witness if she adhered to her testimony after privately examining par 40. Had his Honour not leapt in, counsel may well have revealed to the jury the nature and contents of the document being used to confront the witness. To have done so without first attempting to satisfy the court as to its admissibility would have been a serious breach of s44(2)(b)'s implicit requirement that the court must first be satisfied before the cross-examiner takes that step. It is possible that counsel never intended to do so or that she was ignorant of that requirement until the discussion in the absence of the jury. What we know is that she did not attempt to satisfy the court as to the admissibility of par 40. 68 Counsel was, however, within her rights in showing the document to the witness without first getting permission from the judge or informing the judge what she was doing. She should not have been criticized for going that far. 69 The appellant referred to the observation of the Judicial Committee of the Privy Council in Randall v The Queen [2002] 1 WLR 2237 at 2242-3: It is the responsibility of the judge to ensure that the proceedings are conducted in an orderly and proper manner which is fair to both prosecution and defence. He must neither be nor appear to be partisan. If counsel misbehaves he must at once exert his authority to require the observance of accepted standards of conduct. He should not disparage the defendant in the course of the evidence. Nor should he disparage defence counsel, since jurors inevitably tend to identify clients with their counsel. Sometimes a trial judge may have briefly to check or rebuke counsel. If however he has occasion, in any serious or sustained manner, to criticise the conduct of the defence case or to criticise or rebuke defending counsel, it will usually be prudent for the judge to do so in the absence of the jury and he should ensure that his disapproval of or irritation with counsel does not affect the jury's judgment. 70 The appellant accepts that the present case was nothing so extreme as that considered in Randall. Nevertheless, it is submitted that the judge erred in failing to direct the jury that counsel had not acted improperly or proceeded in a way in which she was not lawfully entitled to proceed and that, in any event, it was completely irrelevant to their determination what view they had of counsel or of the manner in which counsel acted. 71 For reasons already given, I would not endorse what the judge did. He should not have criticized counsel in front of the jury insofar as she was proceeding in accordance with s44(3). But I would not hold that any miscarriage ensued. There is a difference between unappealing judicial behaviour and appealable judicial behaviour (Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 at 192 [107], Barbosa v Di Meglio [1999] NSWCA 307 at [12]). Judges should be paragons of correctness and fairness, but not every departure will constitute an appealable miscarriage of justice. Mistakes are made by all participants in a trial, but juries are directed to attend to the evidence and the formal directions of the judge. Even an unmerited display of judicial displeasure will not invariably cause a miscarriage. Ground 5: The trial judge erred in excluding evidence as to why the appellant answered "Yes" when asked by the police "Is the dress you made your ex-wife J M put on on Monday?" 72 The complainant testified that the leggings she was wearing got torn at the front during the incident. (They were later repaired by her friend Donna Singleton.) The complainant said that the appellant went and got a denim dress for her to wear. It was in a bottom drawer underneath his wardrobe. She put the dress on but it did not fit. She asked him what size it was and he said "a size 12". He took it back and then got the boob tube which she put on. She also took her leggings off and put on a pair of the appellant's tracksuit pants that he handed her (Tr p18. See also p102). 73 A search of the appellant's home found the dress which the complainant later identified in court. The appellant produced it to the police when asked about it during a search under warrant two days after the alleged assault. He agreed that it was the dress he had asked his ex-wife to put on on the previous Monday (Ex C6, the video of the execution of the warrant). 74 When interviewed by the police the same day, the appellant gave the following answers: Q17. Do you agree that I showed you a search warrant to search your premises for a blue denim dress? A. Yes. Q18. And I also handed you an occupier's notice in relation to that search warrant? A. Yes. Q19. And shortly after that you took myself and the police assisting me to your bedroom where you removed a blue denim dress from a bottom wardrobe drawer in your bedroom? A. Yes. Q20. And you agreed that that dress was one that you had asked your ex-wife J… M… to put on on Monday afternoon the 30th of April year whilst she was at your home? A. Yes. Q21. And you also agreed that she was at your home that afternoon to have coffee. A. Yes. 75 The defence case was that the dress had belonged to the complainant when they were married. The complainant denied this, saying that the dress was always too small for her. 76 This issue about the size of the dress was not nearly as significant as its location in the appellant's bedroom. The complainant's version was that the assault occurred within the appellant's home. She was indeed cross-examined on this basis (see Tr pp84, 88, 95 , 96, 99). After her evidence was completed and she was stood down there was a short adjournment. Upon resumption, defence counsel sought and obtained leave to resume the cross-examination, putting to the complainant that she spoke to the appellant on the verandah at the house and never went inside the premises on that day. The complainant's answer was: "We did go inside. We weren't speaking out on the veranda at all." 77 The appellant's evidence was that the complainant arrived in a distressed state saying that she had been to her mother's grave. She only stayed for a few minutes. She left when he told her to leave because he didn't want to put up with her crying the whole time (Tr p151). She did not come into the house at all on the day in question. The conversation took place as he sat half in and half out of his front door. No assault occurred. 78 As regards the denim dress he said that he produced it to Detective Imeson from the bottom of his wardrobe in answer to the search warrant. 79 The appellant gave the following evidence in chief (Tr pp147-8): Q. You were asked a question about the denim dress? A. Yes. Q. Do you remember what that question was? A. Whether it was the dress that I made her wear that day. Q. And when they said "that day" did the police give you a date? A. Yes 30 April. Q. And what did you say when they asked you that? A. Did I say? Q. Yes? A. I said "Yes". Q. And what did you mean when you said "Yes"? A. I meant that – I'd been in touch with J… and told her I'd found it after I'd been able to empty my camphorwood box out. Q. All right, if I could stop you there. When did you telephone her and tell her that? A. A week or two prior to her coming for coffee. Q. And where was the camphorwood box? A. In the loungeroom. Q. And how long had that been there? A. It had been there for about three and a half years. Q. And can you describe to the court how it was that you came to come across the denim dress? A. I had a TV on the camphorwood box. The TV blew up, so we got rid of the television which made it accessible for me to get in to the camphorwood box, and then I wasn't sure how much old stuff was in the box, but when I opened the box, I seen it and I thought, well I'll get that out and give that back to J….. Q. What else was in the box? A. Oh, just, I had a pot plant in there, a floodlight, other bits and pieces, trinkets and books. Q. And did you recognize that dress? A. Yes. Q. Can you tell the Court how it was that you came to have that? A. When we first separated, I threw J…. out, pretty much, because there was a lot of problems going on, and she took what she wanted to take at the time and left and went – came back to Tamworth, and everything that was left, I just packaged up and put in the camphorwood box until I found somewhere else to live. Q. And had you seen your ex-wife wearing that dress at any stage? A. Yes. 80 Later in his evidence in chief there was the following passage (Tr pp159-60 ): Q. In relation to the denim dress, you've already given some evidence about your knowledge of that denim dress? A. Yes. Q. Do you suggest that you asked the complainant to try that denim dress on the day that she came over? A. No. Q. Why did you indicate to the police -- OBJECTION. CROSS-EXAMINATION. Q. You've indicated that you gave a certain answer to the police when they asked you a question about the denim dress? A. Yes. CROWN PROSECUTOR: Your Honour, no, he hasn't given any such answer at all. HIS HONOUR: What was the question? CROWN PROSECUTOR: "You've indicated you gave a certain answer to the police when you were asked a question about the denim dress." HIS HONOUR: Yes he did; he indicated that early in his examination-in-chief, if I'm not mistaken. FRANCIS: Q. Why did you give the police that particular answer? HIS HONOUR: Well, he's already given his answer to that, once. You've asked him before, so once again you're starting to get in the realms of cross-examining him. No, he gave his answer to that before. FRANCIS: Q. Did you understand the question when it was asked? A. No. HIS HONOUR: Really, you know better than that. That is a leading question that you know you shouldn't have asked, and you know that counsel has been objecting and you've decided that you will get it out. I reject that. FRANCIS: May it please the Court, your Honour. I don't seek to mislead the court in any way. HIS HONOUR: Well, you deliberately asked that question and you know you shouldn't have. FRANCIS: Q. Could you describe how it was that the officer asked you that question that day? HIS HONOUR: I'm sorry, I don't understand that question. FRANCIS: Did you have any difficulty hearing it? A. No. Q. No? And you agree that you had assisted the police in trying to find that denim dress? A. Yes. 81 The complainant's evidence about the discussion relating to the denim dress assumed significance at the trial because it obviously took place inside the home, whereas the appellant's evidence was that the complainant never went inside on the day in question. The location of the denim dress in the appellant's bedroom tended to corroborate the complainant's version and contradicted the appellant's version in a material respect. 82 Both on the occasion of his arrest at his home and in the subsequent interview at the police station, the appellant agreed that the dress was one that he had asked the complainant to put on whilst she was at his home. These in effect were admissions that the complainant had entered the house and that some conduct had taken place inside that possibly had a sexual connotation. The appellant's admissions were plainly inconsistent with the defence case. The trial judge summed up accordingly (SU 17 and 26-27). 83 It was clearly open to the defence to seek to explain these damaging admissions. But defence counsel was not entitled to cross examine her client over objection from the Crown prosecutor. When, in the second passage, she asked her client why he had given the police the answer that he did, the trial judge rejected the question on the basis that it had already been put. To ask the same question again was cross-examination in the circumstances. That was the ruling, and in light of it the judge was in my view perfectly entitled to take strong objection to the ensuing question "did you understand the question when it was asked?". 84 The issue raised in this ground of appeal is whether the appellant had in truth already answered the question as to why he had told the police that the dress was the one that he had asked the complainant to put on on the previous Monday whilst she was at his home. When one turns to the earlier passage at Tr pp147-8, the furthest the examination in chief had gone was to ask the appellant what he meant when he said "yes" to the police questions. At page 147 he said "I meant that I'd been in touch with [the complainant] and told her I'd found it after I'd been able to empty my camphorwood box out." The ensuing answers elaborated on the discovery of the dress and the arrangements to return it to the complainant which were made a week or two prior to her coming for coffee on the day of the alleged assault. 85 The questioning in the earlier passage did not explore whether the appellant had misunderstood the police questions the answer to which contained the significantly damaging admissions. 86 Senior counsel for the appellant submits that simply because a question had been previously asked and answered, this is not a proper basis for refusing to permit a question unless the inference is drawn that the repeated asking of the question suggests to the witness that the answer first given was not the one desired by counsel. Whether or not this is a full statement of the relevant principle, it is open to a trial judge to prevent counsel examining a witness in chief from assuming the role of cross examiner once objection is taken (see Evidence Act, s37). The learned trial judge formed this opinion when he intervened during the second passage. Unfortunately, the factual basis for such intervention was falsified when one looks at the questions and answers in the earlier passage. 87 The real issue is whether the rejection of this evidence caused a substantial miscarriage of justice. 88 Trial counsel said this in relation to Ground 5 in the affidavit read on the appeal: I had instructions that the appellant did not dispute that he answered affirmatively in response to the question that was asked of him by the police, namely: "Is this the dress that you asked your ex wife to put on on Monday?" However my instructions were that the appellant intended to convey by that answer that he did have a conversation with the complainant about the blue dress when she came to his house on the day of the allegations, he did ask her if she wanted the dress and that he tried to give her the dress. It was my instructions that he misunderstood the question and did not intend to agree with the proposition that he asked the complainant to wear the dress on that day. I also had instructions that the accused had been woken by the police when they arrived that morning, that as a paraplegic man he has difficulties functioning in the morning and he was doing his best to assist the police which resulted in him agreeing with a proposition without carefully considering the detail of the question. At the time that his Honour disallowed the question I asked the appellant namely: "Why did you give the police that particular answer?" His Honour made certain comments which I felt implied to the jury that the line of questioning, and the manner in which the initial question was asked, were both improper. This was particularly so when his Honour said: "Really you know better than that." 89 From this it emerges that the defence case at trial was to be that there was discussion "at the house" about the blue denim dress. But the complainant's evidence that the appellant asked her to put the dress on while she was inside the house and after the assaults had occurred was to be vigorously disputed. The appellant's answer to question 20 in the ERISP contradicted the defence case in an important particular. It also undercut a key plank in the defence case, namely denial that the complainant ever entered the house on the day in question. 90 According to the affidavit of the appellant's counsel, the appellant wished to say in effect that he had not understood the question and that he had overlooked the damaging barb in its tail which ascribed the dress as the one that he had asked the complainant to put on the previous Monday. 91 The defence should have been permitted to lead this evidence, leaving it to the jury to evaluate its cogency. It is doubtful whether an attempt to explain the matter would have advanced the defence case, but that was a matter for the jury. 92 His Honour's rejection of the opportunity to advance this explanation cannot therefore be described as harmless. I shall deal later with its impact when considering the proviso. 93 Ground 5 is established. Ground six: The trial judge erred in his directions to the jury regarding the evidence of Dr Kennedy. 94 Dr Kennedy was the first doctor to examine the complainant after the alleged assaults. He examined her on 30 April 2001. There was evidence from two of the police officers that they had attempted that day to arrange for the complainant to be examined by a doctor specially trained in sexual assault examinations (Tr pp126, 136). Their evidence, by implication, was that Dr Kennedy was not perceived as qualified in this way. 95 Dr Kennedy gave evidence that he had conducted a detailed examination of the complainant's vulva, anus and peri-anal area. He twice emphasised that he had conducted only an external examination involving "lying down and observation from the outside only" (Tr p32. See also p34 ). He observed bruising on various parts of the body including the left buttock and areas of tenderness and contusion under the pubic hair above the vagina (p31). Under cross-examination, he agreed that no external injury to the anal area and no anal tear were observed. He was asked whether he would have been in a position to observe a tear and he answered "yes. Unless it was an internal tear, because as I said I didn't do an internal rectal examination, it was merely an external observation" (p34). 96 In re-examination the following evidence was given (Tr p40): Q. You were asked a number of questions about your examination of the anus, I think when you were giving evidence in chief, you indicated that you observed the anus from a distance of some 30 or 40 centimetres, is that correct? A. That's correct. Q. And the anus, the anal sphincter, is a muscle which basically continues in circle, is that correct? A. Yes. Q. And the examination that you conducted was simply an external examination from a distance of some 30 centimetres or so? A. With some gentle separation of the buttocks -yeah. Q. You'd expect a forensic examination to involve a more searching examination? A. One could use a thing called a proctor scope, so a little clear plastic thing a bit like a vaginal speculum to look inside. Q. And that will show not just the external surfaces visible to a naked eye I should say, but also the internal surfaces of the-- A. The anus and rectum. Q. Of the anus and rectum? A. Yes. The evidence was not referred to in submissions on the appeal. 97 Dr Grotowski who examined the complainant on 3 May 2001 observed an anal tear. Dr Grotowski testified that "you need to actually look specifically for [an anal tear] by stretching the skin". "Possibly" it would not be found by a doctor "unless specifically look for" (Tr p4). 98 The defence case was that the jury should have a doubt as to whether the anal tear was caused by the appellant and that they should take into account the possibility that it was self-inflicted after the first medical examination. 99 In his summing up the trial judge told the jury (SU 15): Now Dr Kennedy did not do a full sexual assault examination. He was not a sexual assault doctor apparently. He was a male, so he did a physical examination. He detailed material that he saw. It is clear some of the material that the second doctor, Dr Grotowski saw, he did not note." 100 The appellant accepts that there was nothing inaccurate in these directions. 101 Earlier (SU 11) the trial judge had told the jury that Dr Kennedy was not doing a sexual examination as the doctor later was, he was doing a physical examination and he saw that she had these bruises on the breasts. That she had the bruises in the vulval area, one on her shoulder and he said they were consistent and could have been caused in the way that she told him they were. 102 Defence counsel objected to these aspects of the summing up (SU 30-32). She asked the trial judge to tell the jury that Dr Kennedy had conducted a detailed forensic examination and she objected to the judge's implicit distinction between a sexual examination and the examination conducted by Dr Kennedy. The following exchange occurred (SU 31): HIS HONOUR: What are you asking me to do? FRANCIS: To indicate to the court that Dr Kennedy did conduct a thorough examination of the genital --- HIS HONOUR: I never suggested he didn't conduct a thorough examination. FRANCIS: From my appreciation of how your Honour summed up to the jury, that is the -- HIS HONOUR: Well it can be noted. 103 The appellant submits that the directions were unbalanced. I disagree. The evidence supported such a distinction being drawn by the trial judge in his summing up. His Honour did not suggest that Dr Kennedy's examination was less than thorough as far as it went. 104 Dr Kennedy's evidence in re-examination set out above supports the very distinction to which his Honour was adverting. 105 That evidence also explains why there was no miscarriage stemming from the trial judge's refusal to redirect the jury in the two ways sought by trial counsel, namely by telling the jury that Dr Kennedy had conducted a "detailed forensic examination" or by indicating that he did conduct "a thorough examination of the genital [area]). The proviso 106 The Crown submitted that, if any of the grounds were made out, the appeal should nevertheless be dismissed because no substantial miscarriage of justice had actually occurred. 107 In light of the appellant's success on Ground 5 only, the question this Court must answer is whether - if the explanation of the appellant's misunderstanding of question 20 in the ERISP had not been excluded - the jury would inevitably have found him guilty. Unless that question can be answered in favour of the Crown the Court must conclude that the appellant lost a chance of acquittal that was fairly open to him and must uphold his appeal (Wilde v The Queen (1988) 164 CLR 365; Festa v The Queen (2001) 208 CLR 593 at 632[123], 662[229]). 108 The wrongfully excluded evidence went to an issue touching the defence attack on the complainant's credibility. This was the central issue in the trial. Even if this attack would, in my view, still have been likely to fail if the appellant had been allowed to try to explain his damaging admission, I am unable to conclude that a conviction would have been inevitable. 109 I therefore propose the following orders: 1. Appeal allowed. 2. Conviction and sentence set aside. 3. Order new trial. 110 JAMES J: I agree with the President that for the reasons given by his Honour the third, fourth and sixth grounds of appeal should be rejected but the fifth ground of appeal should be upheld, that the proviso to s 6(1) of the Criminal Appeal Act should not be applied in favour of the Crown and that, accordingly, the appeal against conviction should be allowed and a new trial ordered. 111 I have, however, reached a different conclusion from the President with respect to the first ground of appeal. In my opinion, the first ground of appeal should be upheld. As I am in a minority in considering that the first ground of appeal should be upheld and as all members of the Court are agreed that the appeal should be allowed in any event, I will be succinct in stating my reasons for upholding the first ground of appeal. 112 In my opinion, the question which defence counsel asked the complainant "and at the time that you were legally married to him you indicated to him, didn't you, that you had spoken to a solicitor from Legal Aid and that they had indicated to you that you weren't entitled to any of his money but you loved him anyway?" was not "left hanging". Although the trial judge did not say in as many words that he rejected the question, I consider that a fair reading of the trial transcript at pp96-98 which is set out in par 19 of the President's judgment, and of the trial transcript at pp200-201 recording a discussion between the trial judge and defence counsel, indicates that his Honour did reject the question and made a ruling that defence counsel would not be permitted to ask any further questions about a claim by the complainant to a share of the appellant's accident compensation monies. 113 I am, accordingly, of the opinion that the trial judge did cut short a line of possible cross-examination of the complainant about whether she had a motive to fabricate a false allegation of sexual assault. Defence counsel referred at the trial to fabrication of the complaint of sexual assault and the possibility of the complainant receiving compensation as being live issues at the trial. In par 9 of her affidavit filed in the appeal trial counsel indicated the sort of questions she would have asked the complainant, if the question which the trial judge rejected had been allowed and if she had been permitted to pursue the proposed line of cross-examination. 114 My conclusion that the first ground of appeal, as well as the fifth ground of appeal, should be upheld strengthens my further conclusion that the proviso to s 6(1) of the Criminal Appeal Act should not be applied in favour of the Crown. 115 DUNFORD J: I agree with Mason P. ********** Last Modified: 07/11/2003 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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